BAL SINGH Vs. NAWAB SINGH

JUDGEMENT

(1.) This is a defendant's appeal against concurrent decrees of the lower Courts passed in favour of the plaintiffs. The plaintiffs filed a suit under Section 44, Agra Tenancy Act, to eject the defendant from a certain piece of land upon the ground that the latter was a mere trespasser and had no right whatsoever to be in possession of the land in question. Both the lower Courts came to the conclusion that the defendant was a co-sharer in the village to the extent of 1/32, but they found that as the defendant had not obtained the express consent of the lambardar to assume possession of this land, he could be ejected at the suit of the plaintiffs.

(2.) A preliminary objection was taken on behalf of the plaintiffs respondents that no appeal lay to this Court as no question of proprietary right arose in the case and therefore the appeal should have been preferred in the Court of the Commissioner. I have been referred to the pleadings and it is clear that the defendant claimed title to the land in question by adverse possession as zamindar and therefore there was obviously a question of proprietary right in issue in the case. Counsel for the respondents after having seen the pleadings very properly did not press this objection.

(3.) It is contended on behalf of the appellant that the decree of the Court below cannot possibly stand in face of the findings. There being a question of proprietary right involved in this case, the Revenue Court framed an issue and sent it for determination by a competent Civil Court. That Court held that the defendant was a co-sharer with 1/32 share in the village and that finding was accepted by the Revenue Court. The lower Appellate Court has also found as a fact that the defendant had been in peaceful possession of the land in question for 5 or 6 years and that during that time no one had objected. In other words this is a case of a co-sharer taking possession of land not in the possession of other co-sharers and cultivating it without any objection from the lambardar or the general body of co- sharers for a number of years.