1. This appeal is somewhat difficult. The facts which are rather complicated may be stated as below, in accordance with the findings of the lower appellate Court. The occupancy holding in suit belonged to one Ram Narain prior to 1910. A short time before his death he executed a deed of gift in favour of his daughter Mt. Putia and another daughter's son Shambhu Nath. Shambhu Nath is plaintiff in this suit. Ram Narain left him surviving a widow Mt. Parbati and a separated brother Sheo Narain. After his death entries in the record were made according to the deed of gift but Sheo Narain applied to the revenue authorities to have the name of Mt. Parbati entered during her life so that he may succeed his brother on her death. This matter was compromised on 20th December 1910. According to the compromise, to which Sheo Narain, Shambhu and Mt. Putia were parties the holding was given to Mt. Putia and Shambhu Nath reserving out of 34 bighas a small portion of 1 bigha 14 biswas for the maintenance of Mt. Akasi, widow of a predeceased son of Ram Narain, with the condition that on her death the land will be taken into cultivation by Sheo Narain. Before this compromise was entered into a settlement parcha was prepared with respect to this holding in the name of Mt. Parbati. Settlement operations were pending at the time. On 27th September 1913 Mt. Parbati applied for the entry of the names of Shambhu Nath and Mt. Putia urging that they were in possession and not she and that their names had continued in the records from 1910. On the basis of these revenue proceedings the lower appellate Court has held on a finding of fact that Mt. Putia and Shambhu Nath were in possession of the holding except the small portion of 1 bigha 14 biswas subsequent to the compromise. In 1914 trouble arose in the family and Mt. Akasi applied to the revenue Court to have her name recorded on the ground that her husband Gurdin survived his father Ram Narain. Her application was dismissed on 27th February 1914. Soon after Mt. Parbati died and Sheo Narain applied to be entered as occupancy tenant of the holding on the death of Mt. Parbati under Section 22, Tenancy Act of 1901. He was the heir of his brother Ram Narain on the death of Ram Narain's widow without any condition as to joint possession with Ram Narain on the death of Ram Narain. On 24th October 1914, the revenue Court directed his name to be entered in the record. The Court, however, at the time did not consider the previous litigation, the compromise, and Mt. Parbati's application to the Settlement Officer.
2. I have not been able to discover whether the names of Mt. Putia and Shambhu Nath were or were not recorded in the village papers subsequent to the compromise. There is the finding of fact of the lower appellate Court that subsequent to the compromise they were actually in cultivating possession of the land in suit. Subsequent to the revenue Court order on 24th October 1914 Sheo Narain has been in possession and presumably has been paying rent to the zamindar as an occupancy tenant. Nine years later, on 6th September 1923, Shambhu Nath sued for the recovery of the holding on the ground that Sheo Narain and after his death his lineal male descendants were trespassers.
3. If the arguments advanced by Dr. Vaish were accepted the plaintiff would have no case according to the provisions of the Tenancy Act. He argued on behalf of the defendant appellant that in 1914 Sheo Narain become an occupancy tenant and was recognized as such by the zamindar so whatever rights the plaintiff had terminated on that date and as this ejectment was brought by the zamindar, a suit ought to have been brought within six months under Section 79, Tenancy Act of 190l. The zamindar's consent, however, is wanting to make this argument good. It may be granted that Sheo Narain cannot have been cultivating the land for such a number of years without paying rent to the zamindar but the mere payment of rent does not mean active consent of the zamindar or the ejectment of Shambhu Nath through the agency of the zamindar. The argument is certainly ingenious but I think having regard to the intelligence of an agriculturist, it will be safer to hold that the active consent or a participation of the zamindar to eject a tenant should be required to deprive an ejected tenant of the 12 years limitation in the civil Court and compel him to go to the revenue Court within the short period of six months.
4. As must have been observed the decision has become complicated by reason of the property in suit not being revenue paying property but an occupancy holding with peculiar rights. Apart from other consideration I am of opinion that Shambhu Nath and Mt. Putia became tenants of the land under the compromise of 20th December 1910, and were unlawfully ejected by a trespasser Sheo Narain in 1914. The compromise was effected with the consent of the zamindar, as is apparent by his general agent giving consent thereto. The lower appellate Court which has written a very careful judgment has rightly pointed out that though Mt. Parbati was not a party to the compromise, her entire attitude would lead one to the conclusion that she desired to relinquish the holding. Such a desire is manifest from the application already referred to of 27th September 1913. When a Hindu widow, holding for her life under the provisions of. Section 22, Ten. Act, relinquishes a holding the zamindar is at liberty to settle the land with any other tenant. In the present case the zamindar settled in accordance with the compromise with Shambhu Nath and Mt. Putia. Whether in consequence they become occupancy tenants or tenants from year to year is not a question which arises in the present litigation. It is of course true as pointed out by Dr. Vaish that a civil Court would not countenance a collusive act between a Hindu widow and the zamindar in order to extinguish the contingent interest of the reversioner. In the present case, however, no such difficulty arises. The next reversioner Sheo Narain was himself a party to the compromise and there is no suspicion of a collusion between the widow and the zamindar in order to deprive Sheo Narain of his contingent rights. Considering the question entirely in terms of revenue law I am of opinion that Shambhu Nath and Mt. Putia became tenants of the land in 1910. They were subsequently unlawfully ejected by a stranger Sheo Narain in 1914. Sheo Narain became a trespasser in consequence and Shambhu Nath was entitled to sue in the civil Court for the ejectment of the trespasser within 12 years of the trespass.
5. Taking a more general view and not one confined to the terms of revenue law in the present case for a consideration the next reversioner relinquished his, rights and he cannot be permitted to go back upon his relinquishment. The appellant's learned Counsel referred to the case of Amrit Narain Singh v. Gaya Singh A.I.R. 1917 P.C. 95, to warn this Court against holding that a reversioner had a right in praesenti in the property which a female owner held for her life and had bargained with it. The facts of that case were different and the decision was coloured by the fact that a guardian was acting on behalf of a minor reversioner. The general principles of law would apply here that when a party takes a benefit under a particular contract he cannot be permitted to resile from that contract. It was argued that Sheo Narain took no benefit as he was to receive only a very small portion of the holding on the death of a young woman, Mt. Akasi while in law he was entitled to succeed to the entire holding on the death of an elderly woman. As I have already pointed out it was within the power of the widow by agreement with the zamindar to deprive Sheo Narain entirely of the holding by relinquishing it and getting it settled with Shambhu Nath and Mt. Putia. From the facts given already there can be no doubt that the zamindar was favourable to such an arrangement. Under the circumstances Sheo Narain did derive a benefit in making sure of a small portion of the holding reverting to his family though in a distant future. In Kanhai v. Birj Lal A.I.R. 1918 P.C. 70, their Lordships held a reversioner bound under such a contract. No doubt the many questions arising in this appeal are debatable but my view is in favour of the plaintiff. I dismiss the appeal with costs.