1. These are two Letters Patent appeals brought by a plaintiff in the following circumstances: The plaintiff brought two suits for arrears of rent for three years in the Court of the Assistant Collector 2nd Class as follows: In appeal No. 40 there was a plot of 1 bigha 8 biswas, and the rent claimed was As. 15-6 per annum. In appeal No. 44 there was a plot of 3 bighas, and the rent claimed was Rs. 2-3-6 per annum. The plaintiff claimed that he was the zamindar in the village called Cawnpore kohna, or Old Cawnpore, a village which was formerly outside the Municipal limits, but which had been included in the Municipal limits sometime ago. The plaintiff claimed a share in the mahal Jagannath of this village. The main defence in para. 3 of the written statement was:
The plot claimed forms part of abadi land whereon a house is constructed in respect of which house tax is paid. The defendant and her predecessors have been in proprietary possession thereof for a long time. No rent was ever paid.
2. Issues were referred on the question of proprietary title to the Court of the Munsif, and the main issue, 1, was 'whether the plaint property belongs to the plaintiff.' It will be noted that there was no specific pleading of acquisition of title by adverse possession; but evidence was produced on that point and the plea which was eventually made before this Court in second appeal was of adverse possession. The Munsif held in favour of the defendant and the plaintiff appealed to the District Judge, who granted a decree in favour of the plaintiff. The District Judge found that the origin of the title of the husband of the defendant, who was a taluqdar, was a sale-deed from three widows who were grove-holders. These widows executed what was purported to be a sale-deed in the rights of the grove on 14th February 1888, and the relevant portion is as follows:
One grove, known as Saknawala, with land measuring 6 bighas 3 biswas, assessed with annual rent of Rs. 4-4, but not paid, situated in old Cawnpore...purchased by us, is in our exclusive proprietary possession.... We, therefore, transfer and sell the said grove with land and trees, fruit-bearing or not fruit-bearing, with patwari and its produce, together with a well...for Rs. 2,000.
3. Now there is no doubt that persons possessing the interest of grove-holders are entitled to transfer that interest. It is a fact that in this document it is also stated that they sell the site of the grove with land and trees thereon. There is no evidence that the document was brought to the notice of the zamindar, and the mere statement about the selling of the grove-land does not in the opinion of the District Judge amount to any clear assertion of adverse possession. In regard to rent there is an admission that the grove which comprises these 6 bighas 3 biswas was assessed to an annual rent of Rs. 4-4. It is merely stated that the rent was not paid. It is not alleged in the sale-deed that the rent was not payable. It is indeed a matter of common knowledge that in the case of groves rent occasionally lapses when the grove ceases to be a grove producing fruit. Frequently rent is taken from the grove-holder as long as any produce is forthcoming, and when the grove becomes old and produce ceases the zamindar refrains from collecting rent. That is a common case, and does not amount to any exercise of adverse possession on the part of the person holding the grove. Now the present state of the land was found by the Munsif as follows: 'That land in dispute is partly covered by building and partly by the execution of a garden.' The words 'execution' is somewhat obscure. He also stated 'The buildings are pretty old, and so are some fruit and timber trees,' The learned District Judge stated: 'There are some temples and some small residential buildings, but most of the land is an ordinary flower garden with some big trees growing in it.' It is clear, therefore, that the part of the area in dispute which in the present case is about 4 bighas, the major part is land occupied by trees and a garden and is not land occupied by buildings. The original area of 6 bighas odd had been divided by partition of mahals, and the present plaintiff is interested in 4 bighas 8 biswas. Now evidence of adverse possession was produced before the learned District Judge, and he states:
There is the statement of one old servant of the defendant's predecessor in interest that one of the zamindars actually demanded rent soon after the deed of sale and that the defendant's predecessors openly repudiated his right, but I cannot believe this evidence. I do not believe that it is true.
4. There were settlements of this area, one before and one after the sale-deed. The settlement before the sale-deed was in 1876, i.e. in 1283 F; and one after the sale-deed was in 1903 i.e., in 1311 E. In these revenue settlements there was the entry that the land was grove. In the second settlement of 1311-F., the entry of these plots was in the abadi of the village. Now the learned District Judge has found:
There is no reason for supposing that the entry was originally a wrong entry, and therefore I hold the defendant's predecessors in title acquired the land as a grove for which they paid a certain rent.
5. In the wajib-ul-arz it is stated that tenants sell the wood and fruits, but cannot sell the land. He finds that there was no definite assertion which amounted to a denial of the title of the owner, and that it is not shown that the claim of the defendant's predecessor was brought to the notice of the zamindar. He further held:
I hold therefore that the defendant had not at any time acquired a proprietary right by adverse possession. The defendant's title was originally that of a tenant holding a grove and I hold that that is her title now.
6. The learned single Judge of this Court who heard the second appeal came to the conclusion that on the findings of fact by the District Judge adverse possession had' been established by the defendant, and accordingly he dismissed the suit of the plaintiff. He relied on certain rulings, and certain other rulings have been quoted before us. These rulings are: Bhaddar v. Khairuddin Hussain (1906) 29 All 133; Incha Ram v. Bande Ali Khan (1911) 33 All 757; Alopi v. Gajadhar Prasad 1931 All 323; Komil Prasad v. Bharat Indu 1926 23 ALJ 874 and Nabi Mohammad v, Bhagwat Prasad 1931 ALJ 649. Now all these rulings have certain points in common; (1) they are for suits for ejectment: (2) they relate to the site of the houses in an inhabited area; (3) the origin of the tenure of the defendant is not known. In Komil Prasad v. Bharat Indu 1926 23 ALJ 874, it was known that the original occupant of the house was a person who is not a tenant or raiyat. Now the present case is entirely different on all three points. This is not a suit for ejectment; it is not a suit concerned merely with the site of a house in an inhabited area; and it is not a suit where the origin of the possession of the defendant's predecessor is unknown, or where the origin is the occupation of a person who was not a tenant or raiyat. On the contrary in the present case the landlord has merely sued for the rent which was originally assessed on a holding, and which is admitted by the document in title of the plaintiff to have been assessed on the holding. Further the land in question, although it is now included within the Municipal limits, is land which is not merely the site of a house; it is land which was originally grove, and there are still trees of all sizes and age standing upon it. It is only a small portion of the land on which the buildings stand, and the major portion of the land is not occupied by buildings.
7. The origin of the land is grove, and this in our opinion dominates this case. We would refer to Section 116, Evidence Act, which provides that no tenant of an immoveable property or any person claiming through such tenant, shall during the continuance of the tenancy be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such property. Indeed the pleading of the defendant was that by the Bale deed in question the defendant acquired proprietary rights from the three widows who were grove-holders. The defendant partly relied on establishing her title of adverse possession on the basis of non-payment of rent. No other evidence of adverse possession appears to have been accepted by the lower appellate Court which remains the sole Judge of what facts have been proved in a case. Oral evidence which was tendered of adverse possession was not accepted by that Court. The mere erection of certain buildings on the land which was (originally grove does not in our opinion amount necessarily to any evidence of adverse title, because in the present case there is no finding of fact by the lower appellate Court that these buildings were not erected by the permission of the zamindar of the time. In these circumstances we are of the opinion that the finding of the lower appellate Court is conclusive in this case It was not open in our opinion to the learned single Judge to find that adverse possession had been proved. The finding of the lower appellate Court on that point, which is a mixed question of fact and law, is in our opinion conclusive, because the facts point to a want of adverse possession; and therefore in our opinion these appeals must be dismissed with costs throughout. We therefore restore the decree of the lower appellate Court with costs about both hearings.