LALA Vs. SARUP LAL AND PIARI LAL

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiffs for possession of a house. The house stood on a plot of land which, under a partition which took place between the defendants and the predecessors in title of the plaintiffs, was allotted to the share of the former. The defendants dispossessed the plaintiffs from the house and thereupon the present suit was brought for recovery of possession of the house. The court of first instance decreed the claim and that decree was affirmed by the lower appellate court. The defendants have preferred this appeal, and their contention is that under Section 118 of the Land Revenue Act, the plaintiffs are not entitled to recover possession, inasmuch as they did not get rent assessed on the site at the time of the partition. In my judgement the provisions of Section 118, so far from supporting the contention of the defendants appellants, are against them. That section provides that, "if in making a partition, it is necessary to include in the portion allotted to one co-sharer the land occupied by a dwelling-house or other building in the possession of another co-sharer, the latter shall be allowed to retain it with the buildings thereon, on condition of his paying for it a reasonable ground rent to the co-sharer in whose portion it may be included. The limits of such land and the rent to be paid for it shall be fixed by the Collector." It is clear from these provisions that if the site of a house occupied by a co-sharer be allotted to the share of another co-sharer that fact alone would not deprive the owner of the house from retaining it with the building thereon. His liability would be to pay rent for the site on which the building stands. The presumption would be that where a partition has been effected and the site of the house of one co-sharer has been allotted to the share of another co-sharer the owner of the house is to retain possession of the house. In the present case the same presumption arises. The mere fact that rent was not assessed cannot deprive the owner of the house of his right to it. There is nothing to show that the house was not reserved to the plaintiffs respondents. In the absence of any evidence to the contrary the presumption will be that the Jaw was complied with. Therefore the plaintiffs are the owners of the house in dispute and the defendants have no right to dispossess them. Reliance has been placed on a decision of a Bench of this Court in Nandan Pat Tewari v. Radha Kishun Kalwar (1910) 5 Indian Cases 664, to which I was a party. I think the facts of that case are distinguishable from those of the present. In that case there seems to have been a clear non- reservation of the ownership of the house and furthermore the building had been demolished when the appeal was decided, The case of Iswar Prasad v. Jagarnath Singh Weekly Notes 1906 p. 194, seems to be more in point. In my judgement the decree of the lower appellate court is right and I would dismiss this appeal. George Knox, A.C.J.

(2.) I agree and have nothing further to add. Tudball, J.

(3.) I agree.