BENI MADHO Vs. SHAMBHU NATH

JUDGEMENT

(1.) This appeal is somewhat difficult. The facts which are rather complicated may be stated as below, in accordance with the findings of the lower appellate Court. The occupancy holding in suit belonged to one Ram Narain prior to 1910. A short time before his death he executed a deed of gift in favour of his daughter Mt. Putia and another daughter's son Shambhu Nath. Shambhu Nath is plaintiff in this suit. Ram Narain left him surviving a widow Mt. Parbati and a separated brother Sheo Narain. After his death entries in the record were made according to the deed of gift but Sheo Narain applied to the revenue authorities to have the name of Mt. Parbati entered during her life so that he may succeed his brother on her death. This matter was compromised on 20 December 1910. According to the compromise, to which Sheo Narain, Shambhu and Mt. Putia were parties the holding was given to Mt. Putia and Shambhu Nath reserving out of 34 bighas a small portion of 1 bigha 14 biswas for the maintenance of Mt. Akasi, widow of a predeceased son of Ram Narain, with the condition that on her death the land will be taken into cultivation by Sheo Narain. Before this compromise was entered into a settlement parcha was prepared with respect to this holding in the name of Mt. Parbati. Settlement operations were pending at the time. On 27 September 1913 Mt. Parbati applied for the entry of the names of Shambhu Nath and Mt. Putia urging that they were in possession and not she and that their names had continued in the records from 1910. On the basis of these revenue proceedings the lower appellate Court has held on a finding of fact that Mt. Putia and Shambhu Nath were in possession of the holding except the small portion of 1 bigha 14 biswas subsequent to the compromise. In 1914 trouble arose in the family and Mt. Akasi applied to the revenue Court to have her name recorded on the ground that her husband Gurdin survived his father Ram Narain. Her application was dismissed on 27 February 1914. Soon after Mt. Parbati died and Sheo Narain applied to be entered as occupancy tenant of the holding on the death of Mt. Parbati under Section 22, Tenancy Act of 1901. He was the heir of his brother Ram Narain on the death of Ram Narain's widow without any condition as to joint possession with Ram Narain on the death of Ram Narain. On 24 October 1914, the revenue Court directed his name to be entered in the record. The Court, however, at the time did not consider the previous litigation, the compromise, and Mt. Parbati's application to the Settlement Officer.

(2.) I have not been able to discover whether the names of Mt. Putia and Shambhu Nath were or were not recorded in the village papers subsequent to the compromise. There is the finding of fact of the lower appellate Court that subsequent to the compromise they were actually in cultivating possession of the land in suit. Subsequent to the revenue Court order on 24 October 1914 Sheo Narain has been in possession and presumably has been paying rent to the zamindar as an occupancy tenant. Nine years later, on 6 September 1923, Shambhu Nath sued for the recovery of the holding on the ground that Sheo Narain and after his death his lineal male descendants were trespassers.

(3.) If the arguments advanced by Dr. Vaish were accepted the plaintiff would have no case according to the provisions of the Tenancy Act. He argued on behalf of the defendant appellant that in 1914 Sheo Narain become an occupancy tenant and was recognized as such by the zamindar so whatever rights the plaintiff had terminated on that date and as this ejectment was brought by the zamindar, a suit ought to have been brought within six months under Section 79, Tenancy Act of 190l. The zamindar's consent, however, is wanting to make this argument good. It may be granted that Sheo Narain cannot have been cultivating the land for such a number of years without paying rent to the zamindar but the mere payment of rent does not mean active consent of the zamindar or the ejectment of Shambhu Nath through the agency of the zamindar. The argument is certainly ingenious but I think having regard to the intelligence of an agriculturist, it will be safer to hold that the active consent or a participation of the zamindar to eject a tenant should be required to deprive an ejected tenant of the 12 years limitation in the civil Court and compel him to go to the revenue Court within the short period of six months.