MAHBUB ALI KHAN Vs. CHIDDAN

JUDGEMENT

(1.) The plaintiff-respondent brought the suit, out of which this appeal has arisen, for the ejectment of the defendants on the allegation that they were non- occupancy tenants of two plots of land, viz., Plots Nos. 977 and 1007, paying an annual rent of Rs. 4 and that they were liable to ejectment at any moment. Subsequently, the plaint was amended and the plots in suit were described as being portions of the plots mentioned above and bearing the sub-number of 2; that is to say, by amendment, the plots were described as 977 and 1007-2. This amendment has some significance and will be considered later on. The defence was that the plots in suit were groves and the suit was not cognizable by the revenue Court. There is a further plea that at any rate the defendants had held these plots for more than 12 years and had become occupancy tenants of the same.

(2.) The Court of first instance found that the plots in suit were portions of bigger plots which were grove lands belonging to the ancestors of the defendants. But the Court was of opinion that there was no bar to the defendants ejectment from such portions of the grove lands as had come under cultivation. As to the question of occupancy rights, the learned Assistant Collector found that the defendants had not so far paid any rent and that therefore no right of occupancy had accrued in their favour. In appeal by the defendants, the learned District Judge upheld the Court of first instance. In its opinion a partial ejectment from grove land was permissible. The learned Judge did not discuss the question of accrual of occupancy rights. In this Court it has been contended that both the Courts below were wrong in ordering the ejectment of the defendants from what was really a portion of the grove lands. The question of occupancy rights was also raised in this Court.

(3.) It appears to me that on the finding of the Courts below that the plots in suit are portions of groves, the plaintiff's suit must fail. On behalf of the respondents the finding of the lower Courts had not been disputed. The whole matter is made clear by the statement filed by the patwari which was filed by the plaintiff with his plaint and which has been marked as Exhibit A by the Court of first instance. This statement clearly shows that Plot No. 977 has an area of two bighas and was described at the last settlement of 1305 F as a "grove" no portion of which was under cultivation. The same statement shows that in the settlement year of 1305 F the Plot No. 1007 had an area of 1 bigha and 1 biswa and that no portion of it was under cultivation. It is abundantly clear, therefore that the Courts below were right in their conclusion that the lands in suit are portions of what were groves at the settlement. It is also clear that 35 biswas out of 2 bighas area and 5 biswas out of 1 bigha and 1 biswa area have been brought under cultivation and that the former plot was under cultivation for 13 years and the latter for 10 years, when the suit was brought. 3. It appears to me that it must be taken, in the absence of any evidence to the contrary, that the whole of the land on which the grove stood was held on one particular engagement. Unless an agreement to the contrary is proved, a portion of the land held under one engagement cannot be taken away so long as the remaining land cannot be taken away. It is entirely a question of contract. This view was also taken in Jwala Singh V/s. Saheb Din Singh (1906) 9 OC 109 decided by Mr. Chamier (now Sir Edward Chamier) and Har Sahai V/s. Dhanpal Singh AIR 1916 Oudh 158 decided by Mr. Kanhaiya Lal (now Mr. Justice Kanhaiya Lal),