1. These two appeals are connected and have been heard together and may be disposed of by a single judgment.
2. The appellants before us were the defendants in two suits brought by different plaintiffs in a revenue Court for ejectment.
3. In both these cases in the revenue Court it was alleged on behalf of the plaintiffs that they (the plaintiffs) were the zamindars of the lands in suit, that the defendants were lessees (thekadars) of the lands in dispute, paying a yearly rent to the plaintiffs. In para. 3 of both plaints it was alleged that the plaintiffs desire to eject the defendants as the defendants had no right to remain in possession. It was stated that the defendants had been asked to vacate the lands, and refused to do so, and hence suits for ejectment lay under the provisions of Section 63 and Section 58 of the Agra Tenancy Act. In both cases the cause of action for the suit was described as having arisen on the 1st of July 1918, that is to say after the expiry of the agricultural year.
4. In both cases the defendants-appellants, who are before us, denied the allegations set out in the plaints. They pleaded that for several generations they had been in proprietary possession of the plots of land on a fixed sum and had rights as inferior proprietors.
5. The Assistant Collector dismissed both suits, holding that the defendants were not liable to be ejected by proceedings under Section 63. We understand that an appeal against the order of the Assistant Collector was taken to the Commissioner, and thereafter further appeal to the Board. The result of all these proceedings was that the revenue Courts were of opinion that appeals ought to have been preferred to the Court of the District Judge. Both appeals eventually came before the District Judge of Mainpuri who affirmed the order of the Assistant Collector in each case. Before the District Judge a plea of limitation was raised on behalf of the defendant-respondents. The plea was to the effect that the appeals had been lodged before the learned District Judge beyond time. The learned District Judge decided in favour of this plea and was of opinion that the appeals were time barred.
6. The plaintiffs then came up in second appeal to this Court and here they have succeeded. The learned Judge of this Court, who decided the appeals, differed from the lower appellate Court on the question of limitation for various reasons which he sets out in his judgment. He was of opinion that the delay in the presentation of the appeals in the Court of the District Judge should be condoned and that the appeals should be treated as having been filed within time.
7. The learned Judge here also differed from the judgment of the first appellate Court. He has in fact decided that these defendants-appellants are tenants-at-will who were liable to ejectment under the provisions of Section 58 of the Agra Tenancy Act.
8. We have now before us these appeals under the Letters Patent, in which the correctness of the judgment of this Court is challenged on two grounds. It is said in the first place that the learned Judge ought to have held that the appeals presented before the District Judge were barred by time, and secondly it is urged that the learned Judge of this Court was in error in coming to the conclusion that these defendants were liable to ejectment.
9. As regards the question of limitation we do not propose to deal with it. On the other question our judgment is in favour of the defendants-appellants.
10. It has been argued before us that there was before the learned Judge of this Court a definite finding of fact which ought to have led him to dismiss both appeals. The learned Judge of the first appellate Court was of opinion that the plaintiffs had failed to prove that a cause of action had arisen in their favour. They had alleged, as has been set out in their plaint, that the defendants wore thekadars, holding under a theka. The Judge of the first appellate Court was of opinion that being thekadars they could be ejected only on the ground set out in Section 58, Clause (b); in other words on the ground that they were holding under a lease, or theka, the term of which had expired, or was about to expire, at the end of the current agricultural year. He found that there was nothing to show that the period of the theka, under which these appellants were holding the plots, had coma to an end so as to justify the plaintiffs in asking for ejectment on the ground set out in Clause (b) of Section 58.
11. The learned Judge of this Court appears to have taken the view that it was for the defendants to prove that they were enjoying holdings of a permanent nature and that they had failed to show how they came into possession, and under what terms they were holding and they were liable to be treated by the plaintiffs as tenants-at-will from year to year and consequently liable to be evicted on the ground set out in Clause (a) of Section 58 of the Agra Tenancy Act.
12. A great deal of documentary evidence was produced in the course of the trial of these cases and it is clear that it is a matter of great difficulty to ascertain what the status of these defendants is There can be no doubt whatever that they have for a period of at least 90 years been in continuous occupation of this land. It is true that during that period they have been paying rent to the plaintiffs; but it is further found that although they have been in this position of paying rent nevertheless the tenants to whom they sublet have acquired occupancy rights.
13. The nature of the occupation of these defendants has been litigated before and we have before us on the record two judgments that were passed in the years 1904 and 1905 by the Assistant Settlement Officer. It is quite clear from a perusal of these judgments that there was very strenuous dispute between the parties at the settlement which took place in or about the year 1904 as to the status of these defendants-appellants.
14. The Assistant Settlement Officer had great difficulty in assigning to these defendants any position known to the law. We may say at once, however, that he refused absolutely to treat them as being ordinary tenants-at-will. Eventually he came to the conclusion that they had been admitted to possession many years before, probably as mustajars (or farmers) of the plots of land.
15. The matter is by no means clear; for it is difficult to understand how these people, even if they were admitted, were able to hold on during successive settlements as thekadars. They fact, however, remains that in 1904 the Assistant Settlement Officer decided definitely that these people were no ordinary tenants and that the only class in which they could be placed was that of thekadars. He was competent to decide this question, and his classification of those defendants as thekadars must be taken as having settled their status under the Tenancy Act.
16. If that is so, and if these defendants are thekadars, we think it was the duty of the plaintiffs in these two suits to set out definitely in their plaints the grounds on which they were liable to be ejected. So far as we can see, and we are speaking with reference to the provisions of Section 58, the section which was invoked by the plaintiffs in their plaint, the ground on which a thekadar or a person holding under a lease can be ejected is that the term of his lease has expired or will expire at or before the end of the current agricultural year.
17. On this language it appears to us that the plaintiff who has come into Court and is asking for the ejectment of thekadars is bound to show that the theka, or lease, under which the land is held has expired or is about to expire. We have the plaints before us, in which there are no allegations of this kind. As we have pointed out all that is said is that the defendants are thekadars of the land in dispute, paying a yearly rant, and that they have no right to remain in possession. It is not asserted in the plaint why these defendants have no right to remain in possession.
18. We do not agree with the view which was taken by the learned Judge of this Court, that it was for the defendants to prove that they have some permanent right of occupancy which protected them from ejectment. On the facts as set out, and particularly in view of the entries made in the papers, and the decision of the Settlement Officer, we think it lay upon the plaintiffs to show that these defendants-appellants were liable to ejectment on the ground that the period of their theka had come to an end. Having failed to do so, we think both suits ought to have been dismissed.
19. We therefore, allow the appeals, set aside the decrees of this Court and restore the decrees of the lower appellate Court. The appellants are entitled to all costs in this Court including fees on the higher scale.