B GHURPAT SAHI Vs. MAHABIR

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for a declaration of proprietary title. The defendant, brought a suit against the present plaintiff in the revenue Court for ejectment alleging that the present plaintiff was his sub-tenant. On a plea of proprietary title raised by him, the present plaintiff was referred to the civil Court to obtain a declaration of his title. The plaintiff's case as set forth in the plaint was that he was the zemindar of the village and the defendant was originally the occupancy tenant of the plots in dispute. The defendant then abandoned the lands which came into the plaintiff's possession as his khudkasht and have been cultivated by him. The defence was that prior to the plaintiff becoming a cosharer, his father had taken the lands in question for cultivation as a sub-tenant from the defendant's father, and that, therefore, the sub-tenancy continued even though the plaintiff subsequently became the zemindar. There was a further plea that before the partition which has taken place there were other cosharers with the plaintiff's father and even if the plaintiff's plea as to possession was assumed to be true the defendant's occupancy tenancy has not become extinguished.

(2.) The lower appellate Court has stated that the plaintiff is the zemindar of the village without suggesting that he has other cosharers with him, but the first Court has pointed out that he has cosharers. But they have both dismissed the claim on the ground that an abandonment of the holding has not been established. They have, however, found in favour of the plaintiff that the defendant has entirely failed to prove that his father had let out the plots in dispute to the plaintiff's father to cultivate them as a, sub-tenant. The first Court hesitated to believe that the plaintiff and his father had been in possession of the holding since 1316 Fasli. The lower appellate. Court, however, had not challenged the plaintiff's case that the defendant and his father left the village 15 or 16 years ago when the possession of the plot was taken by the plaintiff. It has remarked that the plaintiff and his witnesses deposed to that effect, and then stated that: this does not amount to abandonment as contemplated under Section 87, Tenancy Act.

(3.) It has again remarked that: no notice was given by the plaintiff to the defendant and his father as required under Section 87, Tenancy Act.