GAJADHAR Vs. BHIMAN

JUDGEMENT

(1.) THE plaintiffs now appellants are the zemindars of the mahal in which the land in dispute is situate. THE defendant is alleged to le a tenant of the plaintiffs, and this was admitted by the defendant in his written statement. We have, therefore, an ordinary cape of a landlord and tenant to deal with. THE landlords allege that years ago the defendant entered upon the land in dispute and built a kacha room thereon. THE landlords have brought this suit for the ejectment of the tenant from this piece of land. THE defendant s reply was that the land in dispute is the got of the defendant, that he has been in adverse proprietary possession for a long time past, that his cattle are tied there, that the landlords have never been in possession daring the period of limitation and that the suit is, therefore, time- barred. THE Court of first instance dismissed the suit. THE landlord went in appeal and the learned Subordinate Judge dismissed the appeal, holding that the possession of the tenant on the authority of Nazir Hasan v. Shibba 1 A. L. J. 479: 27 A. 81: A. W. N. (1904) 168 must be either regarded as adverse to the plaintiff and in that case the suit was barred by limitation, or that the defendant was entitled to hold the plot in question as an appurtenance to his holding so long as his tenancy subsists. THE zemindars have come here in second appeal and contend that the view taken by the lower Appellate Court that the land in dispute has become an appurtenance to the defendant s holding as an error, that the defendant cannot acquire adverse title to the land in dispute because the user of the land, so far as proved in the present case, does not constitute adverse possession and that acquisition of no title by prescription to the land in dispute has been proved.

(2.) THE appellant cited in support of his contention the case of Framji Curseiji. v. Gocualdas Madhowji 16 B. 338: 8 Ind-Dec. (n. s.) 703 and also the case of the Land Mortgage Bank of India v. Moti 8 A, 69: A. W. N. (1886) 3: 4 Ind, Deo. (n. s.) 1072. In this last case this Court held that tenants in a mahal, who pleaded that they have a right to use certain waste land as a threshing floor and for stacking con-dung, cannot resist a suit by the zemindar to have his right declared to build a house on that land. Both the learned Judges who decided that case were Judges of great experience in all questions relating to land tenure in this Province and they clearly held in that case that unless the tenants had acquired a right adverse-to the plaintiff as owners by prescription, their right of use only amounted to an use as licensees of the plaintiff and that the license could be revoked by the zemindar, unless the work was of a permanent character on which the defendants had expended money. THE learned Chief Justice, Sir Charles Sargent, in the Bombay case together with his colleague makes some very pertinent comments upon the user of land left by a land-holder unoccupied and used by a person asserting adverse possession. Temporary user of the sort, the learned Judges say, would not necessarily mean and be understood to mean a claim of ownership to the land, and add that these remarks apply with even greater force to such acts of user as throwing rubbish on the land, placing thereon pieces of furniture, scaffolding, building materials, etc. Such acts were done everyday in every part of Bombay without any claim to ownership being thereby intended. I am prepared to say the same about user of banjar land in villages in this part of India. It would require very strong proof for me to hold that occupation of banjar land by a tenant, in the shape of stacking cow-dung, erecting a kacha hut and the like, amounted to adverse possession by a tenant as against a landlord. THE learned Vakil for the respondent cited on behalf of his client the case of Nasir-ul-Zaman Khan v. Azimullah 3 A. L. J. 765: A. W. N. (1906) 216: 28 A. 741 and drew my particular attention to the remarks of the learned Judge in that case, that the mere fact that the thatch of a house had to be renewed from time to time would not make the construction a work of a temporary character. But on reading that judgment carefully I have come to the conclusion that the headnote has gone far beyond what the learned Judge intended to lay down in that case. He contended that this ruling has been followed in Dubri Lai v. Dholu Rai 3 A. L. J. 619: A. W. N. (1906) 243. But that case differs from the present, inasmuch as it was found that the building in question had been as a matter of fact found to be an appurtenance to a holding. THEre is no such finding in the present case. THEre was also cited before me the case of Net Ram v. Tej Ram 20 Ind. Cas. 260: 11 A. L. J. 445. THE learned Judge in that case came to the conclusion that a certain land used by an ex-proprietary tenant must be held to be an appurtenance to his holding; bat he pointed out, and I fully agree with him, that what is an appurtenance to a holding of an agricultural tenant must be decided according to the circumstances of each case. That was a case in which the ex-proprietary tenant had a large area of land to cultivate and required a number of bullocks and other accessories for his cultivation. He was allowed by the zemindar to use a plot of land for tying up cattle and stacking manure. THE land in dispute in the present case is 2 of an acre, and it was not even alleged, still less proved, that this infinitesimal, so to speak, portion of land was required for tying up bullocks or for other agricultural purposes by the respondent. I hold that the plea of adverse possession under the present case was quite out of the question and that circumstances have not been made out from which I can hold that the land in dispute was an appurtenance to an agricultural holding of the tenant. THE appeal is allowed. THE plaintiff s suit is decreed with costs throughout. Two months are allowed to the defendant within which to remove the materials of the kacha hut; if not removed within that time they will be removed by the Court at the expense of the defendant.