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Lunkush and ors. Vs. Rajendra Sahai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 924 of 1947
Judge
Reported inAIR1950All528
ActsTenancy Law; U.P. Tenancy Act, 1939 - Sections 180; Code of Civil Procedure (CPC) , 1908 - Sections 9; Limitation Act, 1908 - Schedule - Article 144
AppellantLunkush and ors.
RespondentRajendra Sahai
Appellant AdvocateM.L. Chaturvedi, Adv.
Respondent AdvocateShambhu Prasad, Adv.
DispositionAppeal dismissed
Excerpt:
- - indeed the presumption of consent which is said to arise in such a case would be contrary to the other presumption which is also well known that a person in possession is presumed to be in adverse possession until the contrary is proved......taken the plots in suit from the mother of the plaintiff when he was a minor and had planted the grove 11 years before the suit with her consent, and that consequently they were grove-holders and could not be ejected. an issue about the groveholders' right was raised. the issue was sent to the revenue court for a finding. the revenue court found that the defendants were groveholders. the munsif thereupon dismissed the suit. on appeal the lower appellate court held that the defendants were not groveholders because they had not planted the grove with the permission of the plaintiff's mother as alleged by them. it, therefore, allowed the appeal and decreed the plaintiff's suit.4. in this second appeal, two points have been raised--firstly, that the civil court had no jurisdiction to try.....
Judgment:

Agarwala, J.

1. This is a defendant's appeal arising out of a suit for possession over two plots Nos. 1697 and 1698 studded with trees.

2. The plaintiff is a zamindar and the owner of the plots. According to him, the defendants had unlawfully taken possession of the plots and planted a grove on them without the consent of the plaintiff or his guardian when he was a minor. The suit was filed in the civil Court for the ejectment of the defendants.

3. The defence was that the defendants had taken the plots in suit from the mother of the plaintiff when he was a minor and had planted the grove 11 years before the suit with her consent, and that consequently they were grove-holders and could not be ejected. An issue about the groveholders' right was raised. The issue was sent to the revenue Court for a finding. The revenue Court found that the defendants were groveholders. The Munsif thereupon dismissed the suit. On appeal the lower appellate Court held that the defendants were not groveholders because they had not planted the grove with the permission of the plaintiff's mother as alleged by them. It, therefore, allowed the appeal and decreed the plaintiff's suit.

4. In this second appeal, two points have been raised--firstly, that the civil Court had no jurisdiction to try the suit and, secondly, that since the trees were planted 11 years before the institution of the suit, there was a presumption that they had been planted with the consent, express or implied, of the landlord, and that since the lower Court had not taken into account this presumption, its finding is vitiated.

5. As regards the question of jurisdiction, I have held in another case that Section 180, U. P. Tenancy Act, under which a suit for ejectment of a trespasser can be filed by a landlord, has no application to a grovel and. The reasons are, firstly, that although the section speaks of 'land' which includes a 'groveland', it speaks of land to which a person can be admitted as a 'tenant' which expression does not include a groveholder, and, secondly, that, on the expiry of the period of limitation, the person in possession becomes a hereditary tenant. No parson can become a hereditary tenant of a groveland. There is thus no force in the first point.

6. The next point urged is that there was a presumption that the trees were planted with the consent of the landlord, when he did not take any action for a number of years. The period of limitation fixed for ejecting a trespasser in the civil Court is 12 years. A person is entitled to wait for the period of limitation prescribed for a suit before he files a suit. It would be very anamolous if he would lose his right of action before the expiry of the period fixed by the statute, by a presumption such as is claimed in this case. To my mind, there is no such presumption in law.

7. In the case of co-sharers, no doubt, when a building has been allowed to be built and has been standing on the joint land for a number of years, a presumption has been allowed to be raised that the building was constructed with the consent of the other cosharers and the cosharer's suit for a discretionary relief of demolition has been refused on that ground. But no such presumption can be raised in the case of an utter stranger. Indeed the presumption of consent which is said to arise in such a case would be contrary to the other presumption which is also well known that a person in possession is presumed to be in adverse possession until the contrary is proved.

8. Learned counsel has referred to certain decisions of the Board of Revenue in which it was held that a tenant, who had planted a grove on his tenancy land, and the grove had been allowed to stand on the laud without any objection by the zamindar for a large number of years, though short of statutory period of 12 years, may be presumed to have planted the grove with the consent of the zamindar. Where a tenant plants a grove on his holding and the zamindar does not challenge the action of the tenant in converting his holding into groveland for a large number of years, such a presumption may be raised. But the same cannot be said of a trespasser planting a grove on plots of land, possession of which he has taken without any permission.

9. The alleged presumption, if any, is at the beat a presumption not of law but of fact and if a presumption of fact is not drawn by the lower appellate Court, there is no ground for interference in second appeal.

10. For all these reasons, I dismiss this appeal with costs.


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