Bennet Ag., C.J.
1. In this second appeal an issue has been referred to this Full Bench as follows:
Whether in the circumstances of this case the land in dispute should be considered to be appurtenant to the defendants' holding, and if so, what is the legal position of the parties with respect to it?
2. The circumstances of the case are as follows. The plaintiff is the zamindar of two abadi plots given in the plaint as No. 60 area 3 biswas 7 biswansis and No. 61/2 area 1 biswa 12 biswansis in mauza Akbarpur, District Aligarh. He claimed in the plaint of 1934 that three months previously the defendants who are occupancy tenants in the village and who live there had made certain constructions, cattle shed, etc., in these numbers which did not belong to them and the plaintiff sued for demolition and injunction. Of the defendants the first three are brothers and they pleaded that their houses had been there for more than 50 years, and
the cattle of the contesting defendants have been tethered therein and the heap of rubbish, manure, etc. had been there since the time of their ancestors.
3. That the numbers have
always been used for the purposes of cultivation, and were appurtenant to the cultivation of the contesting defendants.
4. Only those defendants contested the suit and we are only concerned with them. The Munsif found that there was no proof that the plots wore appurtenant to the occupancy holding, that the use was merely as licensees, and decreed the suit for possession. The Munsif found that the defendants had always been in possession of the plots and had their 'burji, bitora, and ghura' on it. The lower Appellate Court held:
I think that the defendant was in possession of these plots some long time ago, but after that there appears to be a break and discontinuance in his possession as is evident by his own statement in Suit No. 168 of 1927, in which ho docs not claim the land which is now plot No. 60.
5. The decree was therefore upheld for this number, hut the defendants' appeal was allowed for the other No. 61/2 as the Civil Judge thought it had not been claimed in the plaint. In the referring order this error is recognized and the appeal of the plaintiff that ho did claim No. 61/2 is correct. Defendants took a cross-objection that the Civil Judge was wrong about the discontinuance of possession, and accordingly we remitted an issue and the Civil Judge has now found:
The possession of the defendants was not broken and discontinued from 1899 up to the year 1927 or for any period in that interval, and the possession of the defendants has been continuous from 1899 up to the date of the suit over both the plots in dispute.
6. He also found:
It is admitted on behalf of the plaintiff that the defendant and his ancestors have been living in the village for a long time. It therefore stands to reason that the defendants, tenants as they were, had some land for their bhurji, bitaura, and chabutra and ghura. In the partition khasra of 1899 these plots 60 and 61 were shown in the possession of Jiwa Ram as Gher or enclosure of Jiwa Ram. Nand Kishore was admittedly son of Jiwa Ram and the present defendant Bhika is son of Nand Kishore.
7. So are the other two contesting defendants. For the plaintiff-appellant objections were made to the findings but as the findings were based on oral and documentary evidence we held that they could not be challenged in second appeal. The foregoing facts therefore constitute the circumstances of the case. I shall first consider the meaning of the word 'appurtenant' which is in the reference. Halsbury's Laws of England, Edn. 2, Vol. 27, page 601 states:
1067. Strictly the term 'corporeal' applies to the land itself, while rights in the land are incorporeal; but this is not in accordance with legal usage, and a right in the land, if accompanied by possession, is regarded as corporeal, while partial rights which do not entitle the owner of them to possession are regarded as incorporeal.
8. Page 607:
1075. Incorporeal hereditaments include (1) rights in land which are not accompanied by exclusive possession; these are seigniories, franchises, profits a prendre, advowsons, rent charges, rights of common, and, possibly easements; (2) certain heritable rights not necessarily connected with land, such as offices. Incorporeal hereditaments may be either appendant, as seigniories; appurtenant, as easements, or in gross, as rent charges. Eights of common and profits a prendre may be either appendant, appurtenant, or in gross.
9. The word appurtenant therefore connotes rights in land which are not accompanied by exclusive possession, and of the rights enumerated the only rights which could apply here are rights of easement, as the other rights, seigniories, etc., could not possibly apply. In Vol. 11, p. 266, para. 483 states:
A person possesses an easement in respect of his enjoyment of some estate or interest in a particular piece of land, and the easement is said to be appurtenant to that land.
10. Williams on Real Property, Edn. 24, p. 504 makes the same classification and on page 510 states:
Incorporeal interests appurtenant to corporeal property are not very often met with. They consist of such incorporeal interests as are not naturally and originally appendant to corporeal hereditaments, but have been annexed to them, either by some express deed or grant, or by prescription from long enjoyment. Eights of common and rights of way or passage over the property of another person are the principal kinds of incorporeal hereditaments usually found appurtenant to lands.
11. Wharton's Law Lexicon, Edn. 13, 1925, '' by Horniraan, states on page 63:
Appurtenances, belonging to another thing, as 'hamlets to a manor, and common of pasturage, turbary, etc. ; liberties and services, outhouses, yards, orchards, and gardens are appurtenant to a messuage, but lands cannot properly be said to be appurtenant to a messuage. - Com. Dig. tit. 'Appendant and appurtenant'. The word 'appurtenances' will be construed strictly, In re Peck and the London School Borad (1893) 2 Ch. 315 but it has a secondary meaning equivalent to 'usually enjoyed with' : see Roe v. Siddons (1888) 22 Q.B.D. 224 at page 236, per Fry L.J.
12. There is a similar passage in Stroud's Judicial Dictionary, Edn. 2, 1903, page 109, where after setting out that the words 'with its appurtenants' in a devise of a tenement would not pass an easement which had been extinguished by unity of ownership of it and another tenement, it is stated:
But the word 'appurtenant' may be used in a secondary sense as equivalent to such a phrase as 'usually enjoyed with' Bayley v. G.W. Ry. (1885)26 Ch. D. 434.
13. On this passage a view has been taken that this secondary sense is not a right of easement, and that the phrase 'appurtenant to a holding' implies 'a part of the holding' or 'part and parcel of the holding' or forming part of the holding'. Against this view is the fact that Stroud proceeds to state:
In Lister v. Pickford (1865) 34 L.J. Ch. 582 Romilly M.R. said 'It is settled by the earliest authority, and acted upon and confirmed without contradiction down to the latest, that land cannot be appurtenant to land : and that the word 'appurtenances' includes incorporeal hereditaments, such as rights of way, of common, of piscary and the like; but does not include land to be added to that which was granted:
See Hill v. Grange (1550-80) 1 Plowd 164, Buck v. Nurton (1797) 1 B. & P. 53 per Willes J. Simpson v. Dendy (1860) 8 C.B. (N.S.) 433 at p. 468. But though In Lister v. Pickford (1865) 34 L.J. Ch. 582 and Evans v. Angell (1858) 26 Beav. 202 were especially pressed on Kay J. in Chthbert v. Robinson (1882) 51 L.J. Ch. 238 he there, after briefly reviewing the authorities, said:
The law seems to be clearly this : Neither in a deed nor in a will does the word 'appurtenances' include land, if the principal subject of gift is land or a messuage. But if, from the circumstances at the date of the will and the whole context, it is clear that land is intended to pass as appurtenant, the word 'appurtenant' is flexible enough to carry it.
14. It is to be noted that this was merely in the construction of a will, where the Courts give effect to the intention of the testator, no matter whether his language is legally correct or not. Stroud says that probably the burden of proving the enlarged meaning is on those who allege it. The authority cited by Wharton for the secondary meaning is Roe v. Siddons (1888) 22 Q.B.D. 224 at p. 236. In that case the plaintiff contended that his tenement had a right of way over a private road although admittedly for 20 years the way had been blocked by a wall and the private road was only used by the defendant's tenement. The plaintiff relied on his grant which said
together with all ways, &c.; easements, and appurtenances whatsoever to the said tenement and premises hereby granted, or any part thereof, now or hereto before held or enjoyed, or reputed or known as part or parcel thereof, or appurtenant thereto.
15. There was no claim whatever for any 'land', merely for the easement of a right of way. The secondary meaning of the word appurtenances in this ruling had nothing to do with the supposed meaning of 'land'. Lord Bsher M.R. on p. 233 says:
Apparently the soil of the road remains in the owner who made the grants to both the plaintiff and the defendant. The question is, whether the plaintiff has the right of way which he claims. He says that he is entitled to that right of way by virtue of the general words in his conveyance.. These words, the plaintiff says, give him not only rights of way then in existence, but all rights of way thereto before existing.
16. This then is the secondary meaning of the word appurtenances : the easements previously existing before the time of a, conveyance, etc. The primary meaning is. the easements existing at the time of the conveyance. This also explains the method of treatment by Stroud, where it is pointed out that 'with the appurtenances' will not transfer an easement which has ceased to exist; but there is a use of the word 'appurtenant' in the sense 'usually enjoyed with.' It was this use of the word which the plaintiff claimed in Roe v. Siddons (1888) 22 Q.B.D. 224. On pp. 236 and 237 Fry L.J. said:
In Thomas v. Owen (1888) 20 Q.B.D. 225 in delivering the judgment of this Court, I said (at p. 231) : 'No doubt the word 'appurtenances' is not apt for the creation of a new right, and the word 'appurtenant' is not apt to describe a right which had never previously existed; and therefore the mere grant of all appurtenances, or of all ways appurtenant to the principal subject of the grant has been held in many cases not to create a new right of way where the right was not pre-existing at the date of the grant. But from as long ago as the fourth year of Philip and Mary Hill v. Grange (1550-80) 1 Plowd 164 at page 170 the word 'appurtenances' has easily admitted of a secondary meaning, and as equivalent in that case to 'usually occupied'.
Taking the words of the grant before us in their strict legal meaning, they are not apt to create a new right of way which never existed before 1872.... If the deed, supposing it to have been executed in 1852, would have created a right of way, it would have done so, not by force of the primary meaning of the words used, but because, looking at the then existing circumstances, it would have been right to give to the word 'appurtenant' a secondary meaning.
17. In Bayley v. G.W. Ry. (1885)26 Ch. D. 434, cited by Stroud, the secondary meaning is similar. I trust that it is clear that the 'secondary meaning' of the word 'appurtenances' or 'appurtenant' in these English rulings is a meaning applied to rights of easement. The fact that in some ruling the word has been held in a will or gift to include land does not give a secondary legal meaning of land to the word, because those rulings are based on other words in the document which indicate the real intention of the executant. That the word 'appurtenant' has been used in rulings in India in relation to easements is shown by the following rulings. In Chunder Coomar v. Koylasjh Chunder (1881) 7 Cal. 665 at p. 670 it was laid down:
About the law applicable to this question, there is, I think, no doubt. The words 'appurtenant' or 'belonging' will ordinarily carry only actually existing easements, and will therefore carry no right over the land of the grantor.
18. This ruling was made the basis of a ruling by a Bench of the Madras High Court in Venkish v. Krishnamoorthy (1915) 2 A.I.R. Mad. 795 where it was held that the word 'appurtenances' would convoy a way formerly enjoyed as an easement but as to which the right had been suspended by unity of possession, and also a way which during the unity of possession had never existed as an easement but was in fact used for the convenience of one of the tenements severed. It is said that there is a single decision of this Court in which the phrase 'appurtenant to an agricultural holding' is explained, namely Gopi Shanker v. Mt. Lilawati : AIR1932All252 That was a ruling in which the appellant contended that as the defendant had been the daughter of a tenant occupying a house in the village, and. the tenant had died and the daughter could, not succeed to the tenancy, so she had no right to remain in possession of the house, as he alleged it was appurtenant to the, tenancy. It was held that there was no presumption of law that the house occupied by a cultivator in a village is appurtenant to his holding. Niamatullah J. considered, it necessary to explain on p. 147 what the appellant meant by the house being appurtenant to the holding and he stated:
When it is said that a house is an appurtenant to a holding, what is meant is that the site was let to the tenant for the construction of his residential house on the express or implied understanding that it would go with the holding and that, if he be ejected from the latter or voluntarily-relinquished it, his right to occupy the site would cease.
19. Now it seems obvious that the right to occupy a site in the village for residence is; something different from an easement and therefore the use of the word 'appurtenant' applied to such a right will not be good guide for the application of the word to the user of land of the zamindar for the constructions of a mere temporary, nature in the present case, the tying of cattle and their accompaniments in the form of feeding troughs, manure heaps, etc. or the use of ground for a sugarcane press, or for a threshing floor. In the ruling in, question, Niamatullah J. agreed with the judgment of Mukerji J. and that judgment quoted with approval on p. 145, Dalel v. Bhajju (1894) 16 All. 181. On p. 182 that ruling states:
It appears to us that on evidence that a tenant has for a great many years used a particular piece of land along with other tenants as a threshing, floor for threshing out crops, it is competent to the Judge to find, there being no evidence to the contrary, that the right to use a plot of land for that, purpose was part of the contract of tenancy, and that is what we understand the learned Judge to have found here. The decision in Udit Singh v. Kashi Ram (1892) 14 All. 185 does not in the slightest degree conflict with what we have here said. The Judge's finding is that the right was acquired by contract. The decree in, Udit Singh's case Udit Singh v. Kashi Ram (1892) 14 All. 185 was that a right of easement cannot be adversely acquired by a tenant against, his landlord.
20. It will be noted that this ruling of Edge C.T. and Banerji J. is that the right to 'put their cut crops' along with other tenants on a piece of ground of the zamindar was an easement acquired by the contract of tenancy, and that this ruling was approved in the very ruling, Gopi Shanker v. Mt. Lilawati : AIR1932All252 , quoted now as an authority for the contrary proposition that appurtenant must mean a part of the holding. In Sheoraj Chamar v. Mudeer Khan : AIR1934All868 Sir Shah Sulaiman C.J., took a wide view of easements and stated:
The Easements Act is both a consolidating and amending Act. The definition in Section 4 is perfectly wide and would cover any right to do a thing on another's land. It therefore does not follow that nothing which was not recognized to be an easement under the Common law can be an easement under the Act. What rights can be acquired would depend upon local conditions and requirements. Things like the right to take wood for fuel purposes in Garhwal forests, to dry cow-dung cakes on another's wall in these provinces, to use another's land for marriage parties or even the right of privity of a house may possibly be acquired in India, although they may never have been heard of in England.
21. It may be mentioned that the first right is one known to English Common law, and in Attorney-General v. Reynolds (1911) 2 K.B.D. 888 there was a claim by the defendant Reynolds to common of turbary and estovers, that is as stated on p. 906 the right to cut turves and take one load of fuel wood annually from the open parts of the new forest. These rights of easement were appurtenant to a house, and were held to continue to a new house erected in continuance of the old one, though not on the same foundations.
22. One point in connexion with easement may be mentioned at once in order to clear the issues. A tenant cannot acquire by prescription against his landlord any easement over other land of his landlord in favour of the land of his tenancy. This was held on the law prior to the Easements Act in Udit Singh v. Kashi Ram (1892) 14 All. 185, and on the Easements Act in Abdul Rashid v. Braham Saran : AIR1938All293 . Prescription under Section 15 cannot be invoked to make the land in dispute appurtenant to the tenant's holding, or to give rights by prescription, and rulings which are based on a right arising from 20 years user are not correct. Nor is this a case of adverse possession against a landlord, because the constructions in the present case are not permanent but merely temporary. But there remains the case of a grant of the right of easement under Section 8 by the land-holder who would impose on his abadi land as the servient tenement the liability for whatever user was required for the agricultural purposes of the tenancy at the time he granted the tenancy. Such user for agricultural purposes might, vary with the kind of agriculture; for instance, with the introduction of sugarcane Cultivation, a press, etc. would be required in addition to the user for tying cattle. If the grant to the tenant is considered to be an easement, for the purposes required for the agriculture of his holding, then the tenant is not limited to the use merely of the particular piece of ground which was originally sufficient for him. As his agriculture expands he may use more ground as he may require more cattle, or he may require more room for his threshing floor, or he may begin sugarcane cultivation and require room for the cane press and place1 for boiling cane juice. If the user were to be limited to the particular piece of ground originally used, then in most cases that would be only sufficient for tying a single ox or pair of oxen, as a tenant starting cultivation would probably have no more. It is difficult to see how any further ground than that small portion could be allowed on such a theory. It may be noted that even now the Court below finds 'it is just possible that a small fraction of the plots is lying fallow, but that would not affect the merits of the case much'. The questions which arise in the present case are : (1) Can, it be presumed that the landlord allowed the tenants user of sufficient land in the village site for agricultural purposes as appurtenant to the agricultural holding by agreement expressed or implied at the time the tenancy began? (2) If so, can the tenants be deprived of the user while the tenancy continues? (3) If not presumed, are not the tenants mere licensees? The rulings of this High Court on this subject which seem of importance are as follows, Padrath Tewari v. Baz Singh (1915) 2 A.I.R. All. 312, where Sir P.C. Banerji laid down:
Where a tenant has been in possession of a piece of land for purposes ancillary to the purposes of his agricultural holding, the fair presumption is that the land was given to him for the purposes-last mentioned.
23. These constructions were on parti land and were cattle troughs, sugar pressing mill and shed for cattle and cane juice. This ruling was followed by Lindsay J. in Pati Ram v. Har Dayal : AIR1927All118 . In Sarju Prasad v. Shyam Lal : AIR1934All802 there was a ruling by myself in a case where among other constructions there were a charan or cattle shed, and a kolhu or place for grinding sugercane, and a golaur or fireplace for boiling cane juice. The Court of the Munsif had held 'all these constructions are appurtenant to an agricultural holding and are necessary for that purpose'. This was not reversed by the lower Appellate Court. On this finding, I held that the landlord could, not have a decree for demolition of the constructions, in view of the provisions of Section 13, Easements Act. In Nabi Mohammad v. Bhagwat Prasad : AIR1932All33 and in Gopi Shanker v. Mt. Lilawati : AIR1932All252 there were rulings on the question whether the, house of the cultivator was appurtenant to his holding, but that question has no hearing on the question before us. In Kasim Abbas v. Hans Ram : AIR1929All883 Iqbal Ahmad J. laid down:
The possession by a ryot of a parti plot of land belonging to a zamindar is not necessarily adverse. The use of parti plots of land is common in this country and docs not usually arrest the attention of the zamindar. Such possession far from being adverse must be deemed to be permissive. But, there are cases of possession of abadi plots by a tenant to which the rule has no application. Where a plot of land has been used by a tenant for Iris domestic and agricultural purposes, for such a long time as to warrant a presumption that his occupation of the plot is a part of his original contract of tenancy, the zamindar cannot disturb his possession during the subsistence of the contract of tenancy.
24. In one ruling, Rajjab Ali v. Rajjoo Khan (1914) 1 A.I.R. All. 416 it was held by the lower Appellate Court that there was a local custom by which a tenant who holds land for growing sugarcane is entitled to have an abadi plot for crushing cane and manufacturing sugar. A learned single Judge of this Court held that such a finding established a customary easement under Section 18, Basements Act. But there is no such finding of custom in the present case. Agricultural cultivation in this country is carried on by oxen, and such oxen are kept in the villages when they are not working or grazing. The constructions in the present case are for the keeping of oxen; the usual troughs for feeding oxen, straw for food, a block of wood for chopping straw, a heap of manure, okra or clods made from manure for fuel. The oxen are not kept in the fields at night, because differing from Britain the fields are not fenced, and the oxen would stray, be lost, or cause damage to crops, or be injured by wild animals, or be stolen. The oxen are therefore tethered to pegs with suitable feeding troughs, close to the house of their master.
25. For the consideration of the findings in these cases I would lay down the following propositions : (1) Where the origin of the tenancy and the origin of the use of land in the village site for agricultural purposes are neither of them known, the Court should presume that the landlord allowed the tenant user of the land in the village site as appurtenant to the agricultural holding from the time the tenancy began. (2) In such a case the tenant cannot be deprived of the user of the land in the village site as long as the tenancy lasts. (3) Where the origin of the user is shown to be of later date than the origin of the tenancy, then the user is a mere license and may be terminated by the landlord. Considering the findings in the present case in the light of these propositions I would reply in the affirmative to the question which has been referred, finding that the land in dispute is appurtenant to the holding of the defendants, and has been appurtenant from the origin of the tenancy, and therefore the plaintiff is not entitled to a decree for demolition of the constructions and possession and injunction against the contesting defendants.
Iqbal Ahmad, J.
26. The following question has been referred for decision to this Full Bench:
Whether in the circumstances of this case, the land in dispute should be considered to be appurtenant to the defendants' holding, and if so, what is the legal position of the parties with respect to it?
27. The circumstances of the case referred to in the question have been noticed in detail in the referring order and by the learned Acting Chief Justice and it is therefore unnecessary for me to narrate those circumstances. In order to answer the question referred to this Bench it would be convenient to clear the ground by considering at the very outset what does the phrase 'appurtenant to an agricultural holding' connote. Though the phrase has been used in a number of judicial decisions the only decision in which the meaning of the phrase was explained is the decision in Gopi Shanker v. Mt. Lilawati : AIR1932All252 of the report Niamatullah J. observed that:
When it is said that a house is an appurtenant to a holding, what is meant is that the site was let to the tenant for the construction of his residential house on the express or implied understanding that it would go with the holding and that, if he be ejected from the latter or voluntarily relinquished it, his right to occupy the site would cease.
28. It follows from this observation of the learned Judge that a plot of land can be said to be appurtenant to an agricultural holding only if it is proved or the proved facts justify the inference that the tenant of the holding was allowed the use of the plot on the express or implied understanding that he would be entitled to hold possession of the plot so long as he continues to be the tenant of the holding and not thereafter. According to the plain meaning of the words the phrase appurtenant to a holding' implies 'a part of the holding' or 'part and parcel of the holding' or 'forming part of the holding' and I consider that the phrase has been used in this sense in all the judicial decisions in which the question for decision was whether or not a plot that was used for agricultural purposes by a tenant was appurtenant to his holding. In Stroud's Judicial Dictionary, Edn. 2, p. 109, oases have been noticed in which it was hold that the word appurtenances' includes incorporeal hereditaments, such as rights of way, of common, of piscary, and the like; but does not include land to be added to that which was granted.' But it has further been noted on page 109 that the word appurtenant' may be used in a secondary sense as equivalent to such a phrase as 'usually enjoyed with'.
29. I am clear that the word 'appurtenant' in the phrase appurtenant to a holding' has been used in this country in the secondary sense noted above and not in the sense of a right of easement. It is well settled that a tenant cannot acquire a prescriptive right of casement as against his landholder : vide Udit Singh v. Kashi Ram (1892) 14 All. 185 and Abdul Rashid v. Braham Saran : AIR1938All293 . In view of these decisions it is impossible to hold that by holding possession of a plot of land for more than 20 years a tenant could claim a prescriptive right for the use of that plot as against his landholder. Similarly Section 13, Easements Act, is of no avail to the tenants for the simple reason that that Section is confined in its operation to easements of necessity and quasi easements accruing on transfer or testamentary disposition of immovable property or on a partition being made of joint property. Easements of necessity or quasi easements for the convenient occupation of agricultural holdings are unknown to law as administered in this country. I am aware that a tenant of a holding in a village is entitled to take advantage of customary easements recognized by Section 18, Easements Act (Act 5 of 1882). But such easements cannot be characterized as appurtenant to the holding of a particular tenant for the simple reason that such easements by their very nature are for the benefit of all who by virtue of a proved custom are entitled to take advantage of the same and not for the benefit of one particular tenant.
30. Apart from all this, there is another insurmountable difficulty in holding that the word 'appurtenant' has been used in judicial decisions as synonymous with 'incorporeal hereditaments.' It is clear that, subject to the exercise of the right of easement by the owner of the dominant tenement, the owner of servient tenement is entitled to possession of the same, whereas when a plot of land is held to be appurtenant to a holding the tenant and not the landholder is entitled to possession of that plot. It is therefore impossible to hold that the tenant has a mere right of easement over the plot. It follows from what has been observed above that the phrase 'appurtenant to an agricultural holding' means something which is adjunct to or an integral part of the holding.
31. The question then arises when and in what circumstances a plot of land can be said to be appurtenant to an agricultural holding. It is unnecessary to observe that the answer to the question whether or not a particular plot of land is appurtenant to an agricultural holding must depend on the facts found in each case and this was the view taken by this Court in Net Ram v. Tej Ram (1913) 11 A.L.J. 445. The question is a mixed question of fact and law and the answer to the question depends on the legal inference to be drawn from proved facts and circumstances of each case. But it may be safely laid down as a general proposition of universal application that in order to be appurtenant to an agricultural holding the plot in question must be used for agricultural purposes, i.e. for the convenient occupation and possession of the holding, e.g. for tethering cattle, for collecting manure, for keeping fodder, etc. Here I must point out that I am not called upon to deal in the present case with the question as to in what cases a house can be said to be appurtenant to a holding.
32. In cases in which the question under consideration arises for decision the proved facts and circumstances must disclose one or the other of the following four conclusions of fact : (1) The origin both of the holding and of the possession of the plot in question by the tenant of the holding is known or ascertained. (2) The origin of the holding is known but not the date of the commencement of the possession of the plot by the tenant. (3) The origin of the possession of the plot by the tenant is known but not the origin of the holding. (4) Neither the origin of the holding nor the commencement of possession of the plot by the tenant is known and both are lost in dim and misty past. In the first case noted above, the question, does not present much difficulty. If it is proved that the possession of the holding and of the plot by the tenant date back to one and the same period the fair inference is that the plot is appurtenant to the holding. This is so as in most cases the tenant of a substantial holding must need the use of some plot for tethering his cattle, storing manure, fodder, etc. It is therefore not unfair to presume that the plot was given to the tenant by the landholder for being used for agricultural purposes. This presumption may no doubt he rebutted by the landholder and he may prove facts that may justify the contrary conclusion.
33. Again it may be that in a particular case it is proved that the holding was in possession of the tenant from a date before the occupation of the plot by him. In such a case, unless and until the tenant proves that the plot was given to him by the landholder on the express or implied understanding that the same was to be used for the convenient occupation of the holding, the plot cannot be said to be appurtenant to the holding. The reason for this conclusion is that usually a plot can be regarded as appurtenant to a holding if its use by the tenant was permitted by the landholder simultaneously with the letting out of the agricultural holding to him. But it may well be that after the cultivation of the holding for some years the tenant may be permitted by the landholder to occupy a plot for agricultural purposes. This state of affairs is however a bit unusual, and as such the burden of proving that in such a case the plot is appurtenant to the holding lies on the tenant. Lastly it may be that the proved facts show that the plot was in possession of the tenant before the holding was let out to him. In such a case unless the tenant proves an agreement express or implied by the landholder that the plot will thereafter be appurtenant to the holding the plot cannot be regarded as such.
34. In the second case formulated above where the origin of the holding can be traced but not the origin of the possession of the plot by the tenant the plot can be-regarded as appurtenant to the holding only if the Court can legitimately infer from proved facts that the tenant's possession of the plot is co-extensive with the possession, of the holding or that subsequent to the letting out of the holding the zamindar allowed the tenant to occupy the plot for convenient occupation of the agricultural holding on the express or implied understanding that the plot will be appurtenant to the holding. In the third case where the origin of the possession of the plot by the tenant is known but not the origin of the holding the plot can be regarded as appurtenant to the holding only if the proved facts lead to the legitimate inference that either the possession of the holding and or the plot by the tenant dates back to the same period or that the tenant was allowed to use the plot subsequent to the letting out, of the holding on the understanding that, the same will be appurtenant to the holding. In the second and the third class of cases just dealt with the burden of proving that a particular plot is appurtenant to an agricultural holding lies on the person making the assertion, but if both parties, adduce evidence on the point the question, of burden of proof becomes almost immaterial and the case has to be decided on a. consideration of the entire evidence in the case.
35. In the last case noted above where the origin neither of the holding nor of the possession of the plot by the tenant can be traced to living memory the plot must be regarded as appurtenant to the holding if the length of possession and the user of the plot lead to the irresistible inference that, the tenant must have been allowed possession of the plot by the landholder for the beneficial enjoyment of his holding. In attempting to answer the question as to in what circumstances a plot of land can be said to be appurtenant to an agricultural holding I have avoided reference to decided cases as those cases have been noticed by the learned Acting Chief Justice in his judgment and further because I have attempted to exhaustively deal with all the possible; cases that can arise for consideration in answering the question. I agree that the answer to the question referred to us must be that the plots in dispute in the present case are appurtenant to the defendants' holding and that the defendants cannot be ejected from the same so long as they are in possession of the holding.
36. For the reasons given by my learned brother Iqbal Ahmad J., I agree that the question submitted should be answered in the manner indicated in the previous judgments. In my judgment the rights of tenant in a plot appurtenant to his holding are not in the nature of easements. The tenant is entitled to retain possession of such plot as long as the tenancy subsists.
37. The reference is returned with the finding that under the circumstances of this case the land in dispute is appurtenant to the defendants' holding, and has been appurtenant from the origin of the tenancy, and therefore the plaintiff is not entitled to a decree for demolition of the constructions and possession and injunction against the contesting defendants. Costs in the reference will be costs in the appeal.