1. The suit which has given rise to this appeal was brought by the respondent, who is one of the zamindars of the village Bharatpur, a hamlet of Darihal, for the ejectment of the appellant, Saddu, from the site of his dwelling house and for a decree directing him to remove the materials of the house or to receive compensation for the value of those materials. The house is situated in a portion of the abadi of the village which has fallen into the share of the plaintiff by partition. The defendant cultivates land in another mahal of the same village, under a different proprietor. The plaintiff seeks to eject him from his house on the ground that he refuses to pay ground rent for the site of the house. The Court of first instance dismissed the suit, but the lower appellate Court has reversed the decree of that Court. The defendant has preferred this appeal.
2. The learned Judge of the Court below has found upon issues referred to him that about 30 years ago, that is, about the year 1877, the village lands and sites were divided by perfect partition into two mahals, namely, mahal Chunni and mahal Har Sukh; that at the time of that partition the site of the house occupied by the appellant was allotted to mahal Har Sukh, while the land cultivated by him was allotted to mahal Chunni, and that mahal Har Sukh belongs to the plaintiff, and the other mahal to another proprietor. The learned Judge has further found that before this partition, the house occupied by the defendant was erected, and the land now in his cultivation was held, by his predecessor in title; that the defendant and his predecessor in title have occupied the house in dispute for at least 40 years, and that they have been the tenants of the land cultivated by them for at least that period. The learned Judge also holds that, although there is no direct evidence that the site of the house was occupied as part of the contract of tenancy, it may reasonably be presumed that the predecessor of the defendant was permitted by the zamindar to occupy the site to enable him to carry on his cultivation. Upon these findings, which must be accepted in this appeal, it is clear that the house of the defendant is appurtenant to his agricultural holding. So long therefore, as that holding subsists, he is not liable to be evicted from his house. It is true that since the partition of the village, he holds his agricultural holding under a different proprietor from the owner of the abadi in which his house lies, but a partition between co-owners cannot injuriously affect the rights which he possessed before the partition took place. This was the view held in Dharam Singh v. Bhoolar Weekly Notes 1908, p. 123. The learned advocate for the respondent has referred us to two rulings of this Court, which, he contends, support the case of the respondent. Those are the cases of Sundar Lal v. Chajju Weekly Notes 1901, p. 43 and Panna v. Nazir Husain Weekly Notes 1902, p. 60. The first case is clearly distinguishable from the present. In that case a tenant had his dwelling house in one village and his cultivatory holding in another. It was found that he held the land occupied by his dwelling house as a licensee from the plaintiff. It was held that the license could be and had been revoked. The other ruling is no doubt to some extent in favour of the respondent. But with great respect I feel myself unable to follow it. That was a suit by the zamindar to eject certain agricultural tenants from the site of their houses in the abadi on the allegation that they were trespassers and had recently built on land which had lapsed to the zamindar. It was found that the allegation of trespass was false, and that the houses in dispute had been built about 25 years before suit with the implied permission of the then zamindars at a cost of at least Rs. 300. It was held that the defendants were not tenants of the land on which their houses stood and that they were not 'even licensees. If, as found in that case, the defendants built their houses with the implied permission of the zamindars, I fail to see why they could not be regarded as licensees. The grant of a license may be express or implied from the conduct of the grantor (Section 54, Act V of 1882), and if there was an implied grant by the owner of a right to do something on his property which would, in the absence of such right, be unlawful, the right so granted would be a license (Section 52). In the present case however the defendant is not a licensee merely of the site of his house. He holds it as an appurtenant to his agricultural tenancy and cannot be ejected during the existence of his tenancy. I would allow the appeal, set aside the decree of the Court below' and restore that of the Court of first instance, dismissing the suit with costs.
George Knox, J.
3. I agree with the view taken by my brother Banerji, and also in the order proposed by him. As pointed out by him in his judgment, the learned advocate for the respondent based much of his argument upon the case of Panna v. Nasir Husain Weekly Notes 1902, p. 60. I was one of the judges who decided that case, and as the result of the further argument addressed to us in this case I think that the view taken in that appeal is open to question. It will, however, be sufficient to consider this when a case similar to that arises. In the present case, as pointed out by my brother Banerji, the occupation of the house by the defendant was and is appurtenant to his agricultural holding, and so long as the holding subsists, he is, in the absence of any provision to the contrary, entitled to occupy the house until the agricultural holding is determined.
4. I agree with my learned colleagues in thinking that the appeal must succeed.
5. The appellant is an occupancy tenant in the village of Dharihal. In a partition made at the instance of the co-sharers, his agricultural holding fell to one co-sharer, whilst the site of the house in which he and his predecessors in title had lived for at least forty years fell to the lot of another co-sharer, namely, the plaintiff respondent. The latter demanded ground rent from the appellant for the site of the house, and on the appellant's refusal to pay, instituted the suit out of which this appeal arises, asking that the defendant be ejected from the site and ordered to remove the materials of the house within a time to be fixed by the Court, or that the plaintiff may be given possession of those materials at a price to be fixed by the Court. The Munsif dismissed the suit. On appeal it was decreed by the District Judge. The defendant comes here in second appeal.
6. It is clear that the demand of the plaintiff for ground rent was not based on any contract to pay ground rent. The amount of rent which the plaintiff demanded was, it is true, not a large amount, but it was an amount arbitrarily fixed by him. In my opinion the onus lies on him to prove that he is entitled to demand ground rent from the defendant, and this he has failed to discharge.
7. It may, I think, be taken as settled law that before the partition the zamindars as a body could neither have demanded ground rent from the defendant or his predecessor in title, nor have ejected him from his house, and I fail to see how by effecting a partition amongst themselves, they could acquire a right which they did not previously possess when the village was undivided. This view is in accordance with that expressed by Blair J., in Dharam Singh v. Bhoolar Weekly Notes 1908, p. 123 which decision was affirmed in Letters Patent Appeal.
8. If the view adopted by the learned District Judge were approved, it would place in the hands of zamindars a powerful weapon against their tenants, and would go far to nullify all the enactments of the Legislature for securing fixity of tenure to agricultural tenants.
9. I may add that I entirely agree with my brother Banerji in his observations regarding the case of Panna v. Nazir Husain Weekly Notes 1902, p. 60, relied on by the learned advocate for the respondent. With all respect for the learned Judges who decided that case, I do not think the decision was right.
10. The appeal is decreed, the decree of the Court below is set aside, and that of the Court of first instance restored with costs both here and in the Court below.