GULAB SINGH Vs. NANAJI

JUDGEMENT

(1.) THE facts found by the lower appellate Court are as follows: One Gangadin Gadri owned a house in the abadi of the village Bikore and a muafi khairati holding (area 14 acres) attached to that house. He died without heirs some years before the date of this suit. The plaintiff is the malguzar of the village and his agent Kaluram sold the house site to the defendant. The property sold, however, did not include the muafi khairati holding. The defendant believed that he was given the holding along with the house site a3d remained in possession of the holding without any objection on the part of the plaintiff for the last five years. A tenancy of the holding by implication or acquiescence was thus created and the plaintiff is not entitled to eject the defendant from the holding.

(2.) THE only ground of appeal which I need consider is that a tenancy could not be created in this manner by implication or acquiescence. This ground must succeed, In Kanhayalal v. Dularsing [1912] 8 N.L.R. 163 it was held that a tenancy could not be acquired by prescription; a tenancy can only be created by a contract. The failure of the landlord to protest is entirely insufficient as proof that the landlord had entered into a contract with the defendant. The finding of fact is that the landlord gave the abadi site to the tenant and did not give the holding.