1. This is a defendant's appeal arising out of a suit for ejectment brought by the plaintiffs who have purchased the village. The house in question is situated in Kamalganj in the district of Farrukhabad and has the following history: this house was purchased at auction from some one also by Baba Lachmandas. It is not clear what the true character of the possession of the judgment-debtor had been, but we know that Baba Lachmandas had been a zamindarin the village and was a bairagi. He was certainly not a tenant or an ordinary occupier like a raiyat. On the 15th of October 1881, he sold this house along with its site to the predecessor of the defendant and there was a clear recital in the sale-deed that he was the full owner of the house and the site and was transferring his proprietary interest. This sale deed was actually attested by Shib Dayal, one of the zamindars in the village and the predecessor-in-title of the present plaintiffs. Subsequently the house was sold again and then ultimately acquired by the present defendant. On the other hand the plaintiffs have acquired an interest in the village from the zamindars. The defence mainly was that the defendant and his predecessor had been in adverse possession of the site all along and are full proprietors and that the plaintiffs never had any possession over or title in the property. The learned Munsif came to the conclusion that the defendant had fully established his adverse possession and that the plaintiffs had failed to prove that they ever had any possession within twelve years of the suit or that their title had ever been acknowledged. He accordingly dismissed the suit. On appeal the lower appellate Court has set aside that decree and remanded the case.
2. Ordinarily a finding on the question of adverse possession would be a finding of fact and binding in a further appeal but in this case the learned Subordinate Judge of the lower appellate Court has made several errors of law: in the first place he has distinguished the Full Bench case of Incha Ram v. Bande Ali Khan (1911) 33 All 757 on the supposition that the site of the shop in dispute in that case was situated in a market (ganj) and not within the ordinary ambit of the zamindari. That this is incorrect will appear from p. 880 of the report, A.L.J., where Richards, C.J., remarked that it had been found that the site in question was not situated in ganj established by Mr. Redcock. Then again the learned Subordinate Judge thought that inasmuch as the present occupier of this house, namely, respondent 1 was a tenant of the village, therefore the presumption that the house belonged to the zamindar at once arose. He forgot to notice that although the present respondent happens to be a tenant he has established the way in which the house had devolved on him and has shown that at any rate in 1881 the occupier of the house was not a tenant, but was a zamindar about whom there can be no presumption of law that he was a mere tenant or raiyat of the other zamindars. We think that the rule of law laid down in the Full Bench Incha Ram v. Bande Ali Khan (1911) 33 All 757 applies clearly to this case. As a matter of fact that case arose out of a dispute with regard to a house situate in this very village. Richards, C.J., remarked that it was quite clear that Kamalganj was not an ordinary agricultural village in which the ordinary strong presumption of the ownership of the zamindar arose. In the circumstances he did not think that it was necessary that the defendants should prove that they expressly set up adverse possession more than 12 years before the suit. Banerji, J., distinctly held:
It not being proved that the occupation of the site in question was with the leave and license of the landlord, but it being proved that the occupier belonged to a class of persons who ordinarily found no place in an agricultural village, that he never acknowledged the landlord's title and never paid rent or any other dues to him for the occupation of the site, the ordinary rule that every plaintiff against whom limitation is pleaded must prove subsisting title not barred by limitation, will apply even when the plaintiff happens to be the zamindar.' As it had been held that the village was an agricultural village but two-thirds of the inhabitants were said to have been non-agriculturists, Chamier, J., remarks: there being no proof and no ground for presuming that the zamindar had been in possession of the land at any time during the last 40 years or that the defendants or their predecessor held under him in any sense, and I think that the case might have been disposed of on that ground.' On the findings of both the Courts below in this Case it is quite clear that it is not a case where the origin of the occupation of the defendant is unknown. It is known definitely that it was occupied at one time by a person who was not a tenant or raiyat of the zamindar. Furthermore, it is known that at no time the plaintiff had actual possession of it. At no time has the defendant or his predecessors acknowledged the title of the zamindar or paid any rent. Assuming therefore that the mere attestation by Shib Dayal did not entitle the Court to raise the presumption that he was aware of the contents of the document which expressly stated that absolute ownership was being transferred, the suit cannot succeed. That recital at any rate shows that the occupation of Babu Lachmandas and his transferee was not in the capacity of a licensee. The view taken by the learned Munsif was correct and we must allow this appeal and setting aside the order of remand restore the decree of the Court of first instance with costs in all Courts including in this court-fees on the higher scale.