SHEORAJ SINGH Vs. KUNJ BEHARI

JUDGEMENT

(1.) In this case the plaintiff sued for ejectment of the defendants from two plots in the village. These plots had been originally in the abadi, but since the current settlement they have been included in the plaintiff's mahal. It was also in evidence that they are cultivated. The defence was that the plaintiff could not sue without joining other co-sharers, as the plots in suit were situated in the abadi which belonged to all the co-sharers in common. This plea was rejected by the trial Court, as it was found that according to the last settlement the abadi had been partitioned and the portion of the abadi containing the plots assigned to the plaintiff. There is no cross-appeal calling in question this finding. The trial Court found that the plots had of recent years been cultivated and were consequently land within the meaning of the definition of that word as used in the Tenancy Act. It further held that under Section 34, Tenancy Act, the plaintiff could treat the defendants as tenants for the purpose of suing them for ejectment. Accordingly it decreed the suit.

(2.) In first appeal the District Judge of Cawnpore held that either the plots weresituated in the abadi and were held by the defendants as appurtenant to their houses in the abadi, or else they were held by them as mere trespassers. There being no contract of tenancy, the plaintiff could not sue for ejectment of the defendants as tenants. He held that Section 34 read with the definition of "tenant" could not be invoked to justify the plaintiff in treating the defendants as tenants, because under Section 34, rent is only payable by a trespasser, if rent has been paid by some one else in the previous year, or if the rent has been fixed by the Collector.

(3.) In this appeal it is urged that the terms of Section 34, read with the definition of "tenant," allow a zamindar to treat a trespasser as tenant notwithstanding that no rent may have been paid for the land in the previous year or fixed by the Collector. It is also urged that assuming the trespasser could not be treated as a tenant, under Section 197, Tenancy Act, the District Judge was bound to dispose of the appeal as if the suit had been instituted in the civil Court and eject the defendants as trespassers.