RAM SEWAK Vs. MTRANI SUBHADDRA KUAR

JUDGEMENT

(1.) These are two Letters Patent appeals brought by a plaintiff in the following circumstances: The plaintiff brought two suits for arrears of rent for three years in the Court of the Assistant Collector 2nd Class as follows: In appeal No. 40 there was a plot of 1 bigha 8 biswas, and the rent claimed was As. 15-6 per annum. In appeal No. 44 there was a plot of 3 bighas, and the rent claimed was Rs. 2-3-6 per annum. The plaintiff claimed that he was the zamindar in the village called Cawnpore kohna, or Old Cawnpore, a village which was formerly outside the Municipal limits, but which had been included in the Municipal limits sometime ago. The plaintiff claimed a share in the mahal Jagannath of this village. The main defence in para. 3 of the written statement was: The plot claimed forms part of abadi land whereon a house is constructed in respect of which house tax is paid. The defendant and her predecessors have been in proprietary possession thereof for a long time. No rent was ever paid.

(2.) Issues were referred on the question of proprietary title to the Court of the Munsif, and the main issue, 1, was "whether the plaint property belongs to the plaintiff." It will be noted that there was no specific pleading of acquisition of title by adverse possession; but evidence was produced on that point and the plea which was eventually made before this Court in second appeal was of adverse possession. The Munsif held in favour of the defendant and the plaintiff appealed to the District Judge, who granted a decree in favour of the plaintiff. The District Judge found that the origin of the title of the husband of the defendant, who was a taluqdar, was a sale-deed from three widows who were grove-holders. These widows executed what was purported to be a sale-deed in the rights of the grove on 14 February 1888, and the relevant portion is as follows: One grove, known as Saknawala, with land measuring 6 bighas 3 biswas, assessed with annual rent of Rs. 4-4, but not paid, situated in old Cawnpore...purchased by us, is in our exclusive proprietary possession.... We, therefore, transfer and sell the said grove with land and trees, fruit-bearing or not fruit-bearing, with patwari and its produce, together with a well...for Rs. 2,000.

(3.) Now there is no doubt that persons possessing the interest of grove-holders are entitled to transfer that interest. It is a fact that in this document it is also stated that they sell the site of the grove with land and trees thereon. There is no evidence that the document was brought to the notice of the zamindar, and the mere statement about the selling of the grove-land does not in the opinion of the District Judge amount to any clear assertion of adverse possession. In regard to rent there is an admission that the grove which comprises these 6 bighas 3 biswas was assessed to an annual rent of Rs. 4-4. It is merely stated that the rent was not paid. It is not alleged in the sale-deed that the rent was not payable. It is indeed a matter of common knowledge that in the case of groves rent occasionally lapses when the grove ceases to be a grove producing fruit. Frequently rent is taken from the grove-holder as long as any produce is forthcoming, and when the grove becomes old and produce ceases the zamindar refrains from collecting rent. That is a common case, and does not amount to any exercise of adverse possession on the part of the person holding the grove. Now the present state of the land was found by the Munsif as follows: "That land in dispute is partly covered by building and partly by the execution of a garden." The words execution is somewhat obscure. He also stated "The buildings are pretty old, and so are some fruit and timber trees," The learned District Judge stated: "There are some temples and some small residential buildings, but most of the land is an ordinary flower garden with some big trees growing in it." It is clear, therefore, that the part of the area in dispute which in the present case is about 4 bighas, the major part is land occupied by trees and a garden and is not land occupied by buildings. The original area of 6 bighas odd had been divided by partition of mahals, and the present plaintiff is interested in 4 bighas 8 biswas. Now evidence of adverse possession was produced before the learned District Judge, and he states: There is the statement of one old servant of the defendant's predecessor in interest that one of the zamindars actually demanded rent soon after the deed of sale and that the defendant's predecessors openly repudiated his right, but I cannot believe this evidence. I do not believe that it is true.