1. This is a second appeal from the decision of the learned District Judge of Cawnpore. A 'taluqdar' of Oudh, the Raja of Sissendi thought fit in 1888 to remove his abode from Oudh to the banks of the Ganges in old Cawnpore. He acquired there certain plots under a sale deed and lived there until he died some years later. His wife, the Rani the present defendant, continued to live on the same land on which the Raja had built dwelling houses and a temple. On 7th September 1926, the plaintiff, who claimed to be the zamindar of the property, brought an action, claiming rent for three years amounting to Rs. 7-4-0 for the site of the buildings and the garden. It is interesting to note that 7th September 1926 was the precise date when the new Tenancy Act came into force. The defendant resisted the claim of the plaintiff for rent on the ground that she was in proprietary possession of the plots. The learned Judge of the Court below came to the conclusion Shat the predecessors-in-title of the Raja were grove-holders and that the land was subject to rent, that although the land was now urban land and had lost its agricultural character, that made no difference to the position between the parties and that the present defendant was still in the position of a grove-holder and that she had not established adverse possession. He therefore gave a decree to the plaintiff in terms of his claim. The defendant appeals to this Court. It is contended by Sir Tej Bahadur Sapru, on behalf of the appellant that adverse possession has been proved in this case. It is important to note that the original sale deed, entered into by the vendors and the Raja, purported to pass to the Raja land as follows:
One grove, known as Saknawala, with land measuring 6 bighas 3 biswas, assessed with annual rent of Rs. 4-1-0 but not paid, situated in old Cawnpore...purchased by us, is in our exclusive proprietary possession.... We there-lore transfer, and sell the said grove with land and trees, fruit-bearing or not fruit-bearing, with patawar and its produce, together with a well...for Rs. 2,000.
2. Further, there was in evidence the revenue paper, in which it was recorded that this land was grove-land subject to rent. This entry in the revenue record, it is to be noted, was also made when the Raja was in possession of the property. It has been found as a fact that the Raja never did in fact, pay one penny of rent for this property, and that his wife, the present defendant, has also not paid any rent. It is clear therefore at the outset that the record in the revenue papers is not accurate as regards the time when the Raja was in possession of this property. The document of title which passed this property to the Raja asserted, that rent had not been paid. The learned Judge finds that the land originally was grove land, for which the predecessors-in-title of the defendant had paid rent. It is perfectly clear that this finding cannot mean that the Raja, who was a predecessor-in-title of the defendant had paid rent, because there is a (definite finding later on that he had not. So it is clear that this finding cannot be taken to mean that the immediate predecessor of the Rani had paid rent. No one disputes in this case that the land originally was grove land and that the original grove-holder probably paid rent for it; but it appears to be clear from the finding of the learned Judge and the Raja's document of title that not only did the Raja and his wife not pay rent but the Raja's immediate predecessors-in-title had at any rate never paid rent either. The fact therefore is that for certainly 40 years, and probably for 50 or 60 years, not a penny of rent had been paid for this land. Further, it is clear that, until the new Tenancy Act came into force, no one thought it worth while to set up a claim that this property was rent bearing property and that the tenant should pay rent. We have further the finding that the Raja built a temple and residential houses upon this land. If it had, in fact, been grove land at that time the Raja must have known that that action would immediately subject him to be ejected from the land and that his buildings could be confiscated by the zamindar. Taking all these facts into consideration, it seems to me to be clear, beyond any doubt, that the position at the date of the acquisition of this land by the Raja, must have been clear both to the Raja and to the then zamindar. That position could only be, in my opinion, that this land, whatever it may have been in past, was not grove land at that date and that the assertion in the sale deed that it was in exclusive proprietary possession of the vendors was correct. But assuming for the moment that it was grove land at the time the Raja took possession of it, I am clearly of opinion that the only possible inference from the facts, that I have set out above is that adverse possession had been acquired by the Raja, No one, in any country, much; less in India, would allow a claim of this sort to lie idle for all these vast number of years, unless the zamindar knew that he bad, in fact, no claim to the land at all.
3. I am supported in my view in this matter by a reference to several well-known authorities, beginning in Bhaddar v. Khairuddin Husain (1907) 29 All. 133, which was a Bench decision. It was there decided that a person, who is neither an agricultural tenant nor a village handicrafts man and was found in possession of a house in the 'abadi,' which he and his predecessors-in-title had held for a period of considerably more then 12 years, without paying rent or acknowledging in any way the title of the zamindar to the site upon which it was built, had acquired the absolute ownership of the site, that is, of course, by adverse possession. That case was followed in Iacha Ram v. Bande Ali Khan (1911) 33 All. 757 by a Full Bench. In that case in a village, which was not purely an agricultural village but in which, on the contrary some two-thirds of the inhabitants were non-agriculturists, certain persons, father and son, were in possession of a house site in the 'abadi.' They carried on the occupation of inn-keepers and sellers of tobacco, and there was no evidence of their possession or that they ever paid rent to the zamindar or acknowledged his title in any way. It was held that, in the circumstances of the case, the defendants and their predecessors-in-interest were properly held to have acquired a title to the site by adverse possession. The only fact which distinguishes this Full Bench case from the present case under discussion is that in the Full Bench case there was no evidence of the origin of the possession of the defendants, while in this case there is. But, in my opinion, the fact that there is evidence of the origin of the defendant's possession in this case adds all the more to the strength of the defendant's case, as it is clear that the vendors in this document purported to convey to the Raja an exclusive proprietary possession. The last case, which it is necessary to note is reported in : AIR1931All323 , Alopi v. Gajadhar Prasad. In this case a learned Single Judge of this Court came to the conclusion that where a person in a village, who is neither an agriculturist tenant nor a village handicraftsman but who is in possession of a house, which he and his predecessors-in-title have held for considerably more then 12 years without paying rent or acknowledging in any way the title of the landlord to the site upon which it is built, acquires an absolute ownership of the house site, it is to be noted that this Single Judge decision was upheld in Letters Patent. There is one point which I have omitted to notice, and that is, that although this land originally was agricultural land, old Cawnpore has for many years been within the Municipal area of Cawnpore and is now an urban site and has lost all attributes of its agricultural origin. In view of the authorities, I have no hesitation in deciding that in this case adverse possession has been clearly proved.
4. It has been contended by the respondent in this Court that the finding against adverse possession is a finding of fact, which is binding on me in second appeal. It is clear however on a reference to the authorities, namely, Lachmeswar Singh v. Monowar Hossein (1892) 19 Cal. 253 and Satgur Prasad v. Raj Kishore Lal A.I.R. 1919 P.C. 60, that, where the finding of adverse possession or the contrary is an inference from facts found by the lower appellate Court, that inference is open in second appeal to be dealt with by the Court. As the above is my clear opinion, the appeal must be allowed with costs.