George Knox, Acting C.J.
1. The subject-matter of this appeal is described in the plaint as a shop, the occupant of which carries on grocery business. It is situate within Mahal Radhe Lal in Mauza Barampur, Pargana Manghanr, Tahsil Roorkee. The plaintiffs are zemindars of the mahal, this is admitted. Ik is said in the plaint that the defendant Hori Ram occupied a certain plot of land in the abadi as a tenant of the zimindars and paid chaukidara tax for the same. But subsequently under a collusive and fictitious sale-deed dated the 30th of May 1912, he sold the aforesaid shop to defendants Nos. 2, 3 and 4 and he gave up residing in the village and took up .his residence in Qasba Parkazi, District Muzaffarnagar, That the defendants-vendees took possession of the shop and are now in possession of it. That the defendant No. 1 occupied the land covered by the said shop as a ryot. He had legally no right to transfer nor had defendants-vendees any right to remain in possession thereof without the permission and consent of the plaintiffs, who are zemindars and proprietors. That immediately on coming to know of the sale, the plaintiffs desired the defendants-vendees several times to remove the materials purchased, to vacate the site and to make over possession thereof to the plaintiffs but they refused to do so. The plaintiffs accordingly pray that defendants Nos. 2, 3 and 4 be ordered to vacate the site of the shop and may be ordered to remove the materials of the shop purchased and absolute possession be given to the plaintiffs.
2. The answer to the allegations contained in the plaint are that defendant No. 1 was the owner of the property in suit and had been in proprietary and adverse possession for more than twelve years. He was not a tenant of the plaintiffs, nor did he pay the chaukidara or any zemindari dues. That the defendants have never been in possession within twelve years.
3. The case is not complicated by any contention that the mahal is not a purely agricultural mahal, and the dispute between the parties resolves itself into ope of a zemindar seeking to eject from abadi lands persons who without right or permission derived from him occupied portions of the abadi land. The Court of first instance decreed the claim and the defendants went in appeal. The appeal was heard by the Additional District Judge of Saharanpnr.
4. I have noticed in more than one case which has come from this Court that the Judge takes a peculiar view of the law on this subject. He starts off in the present case before me, as in other cases, in laying down that in the suit for possession it is the duty of the plaintiff to prove his possession within twelve years next before the institution of the suit. He appears entirely to forget the relation which exists between zemindar and tenant with regard to land situate in the abadi, It would appear that he had never really studied the leading case on this matter of Sri Girdhariji Maharaj v. Chote Lal 20 A. 248 : A.W.N. (1898) 27 : 9 Ind. Dec. (N.S.) 520 I say this, because if he had he would not have started with the inaccurate premise with which he does. In Second Appeal No. 1040 of 1914, I have pointed out the fallacy of this reasoning and called particular attention to it. If a person occupying a portion of the abadi in a purely agricultural mahal raises the defence of adverse possession, the burden of proving that possession lies very heavily upon him and he cannot rid himself of that burden by saying that the zemindar has not shown that he has been in possession within twelve years next preceding the suit. It is most natural that the plaintiffs should not know on what terms this land was given to the father of Umrao; if they had pretended to have such knowledge the probability would be that they would be setting up a fictitious case. It is enough, to say, I am zemindar of this abadi and it is for you (the ryot) to shew how contrary to the general custom prevalent in the United Provinces, yon prove the plea of adverse possession. I do not mean to say there are not villages in which the Record of Rights does not admit the existence of some custom upon which such a plea might be founded, but I do say that the defendant has to bring forward an opposite custom and to prove that it is a custom prevailing in his village. The learned District Judge writes: 'On the other hand, the defendants are purchasers from Umrao, who had been in adverse possession of the site of the shop for more than twelve years.' He gives no foundation for the determination of this, but bases it upon what he is pleased to term a 'series of rulings beginning with Nazir Hasan v. Shibba 27 A. 81 : 1 A.L.J. 479 : A.W.N. (1904) 168.' He has not said where this initial ruling of the series is to be found or where any other rulings of the series are to be met with. No attempt was made to support this judgment by a reference to any of these rulings. Only one case was cited to me with which I shall shortly deal. He goes on to say that 'The ruling applicable to this case is Bhadder v. Khair-ud-din Husain A.W.N. (1906) 305 : 3 A.L.J. 760 : 29 A. 133.' That was in many ways a peculiar case. The houses in dispute were houses situate in Mohalla Daraganj in the city of Allahabad. The judgment does not show to what profession the person who laid claim to the houses as owner belonged. But it is said in 'the judgment of the learned Chief Justice that neither the owner of it nor any of his predecessors-in-title ever paid any rent for it, nor gave any acknowledgment of his title to the zemindar, nor carried on any trade, such as that of carpenter, blacksmith, etc., for the carrying on of which sites in the abadi of a village are usually granted by the zemindar free of rent.' Mohalla Daraganj cannot by any pretence be said to be a purely agricultural mohalla, it is a portion of the city of Allahabad inhabited mainly by pragwals and it is doubtful whether a single tenant of an agricultural type resides within the four corners of the mohalla. The claimant in the present case and his predecessor were apparently petty banias dealing in groceries and wares which would find favour in a purely agricultural village and would in most cases be necessary to make the village the self-consisting unit which Indian villages used to be.
5. The case referred to above is that of Rai Raj Narain v. Kammunu, First Appeal No. 1176 of 1915 decided on the 10th April 1917. The main point on which that case was decided was the contention of the plaintiff that the learned Judge of the lower Appellate Court had disposed of the appeal on a ground which was not taken in the case and had set up a plea of adverse possession. There was, moreover, a finding that a custom of transfer of houses by tenants without any objection made by the zemindar was current and proved. This is a totally different case from the one before me. In this case the learned Judge goes on after these preliminary statements to lay down this startling result. That there being no proof that Umrao or his father was a ryot of the plaintiff, their possession must be presumed to be prima facie adverse, I allowed time in this present case at the special request of the learned Counsel for the respondents to allow the parties to arrive at some understanding, and I think it is unfortunate that the respondents do not appear to have availed themselves of this opportunity. The pleas taken in appeal prevail.
6. The appeal is decreed, the order of the lower Appellate Court is set aside and the decree of the Court of first instance is restored with costs in all Courts.