1. These two appeals arise out of two suits brought by the two plaintiff-respondents under Section 44, Agra Tenancy Act (3 of 1926), for ejectment of the defendant-appellant on the allegation that the latter is in possession of the lands in dispute without the consent of the plaintiff in each case. The land in possession of the defendant lies partly in the mahal of one of the plan tiffs and partly in that of the other. Hence each of the plaintiffs brought a separate suit for ejectment, as already stated.
2. The defendant denied the plaintiffs' rights to maintain suits for ejectment, under the Tenancy Act and claimed to be himself the owner of the lands in dispute. A question of proprietary right having thus arisen, an issue was remitted by the Revenue Court to the Civil Court (in this case, the Munsif of Etah) under Section 121, Tenancy Act. The Civil Court upheld the defendants' claim to ownership of the lands in dispute, holding that he had been in adverse proprietary possession, thereof for a considerable length of time exceeding 12 years. On receipt of this finding the Revenue Court dismissed the plaintiffs' suit. The latter preferred two appeals to the Court of the District Judge, who reversed the decrees passed by the trial Court, but did not decree the plaintiff's' suits for ejectment and merely granted the relief of declaration to the effect that the plaintiffs are the owners, of the lands in dispute and, as such, entitled to have rent assessed thereon.
3. One of the contentions put forward by the learned advocate for the defendant-appellant is that the learned District Judge should not have granted the relief of declaration in the exercise of his powers as a Court of appeal from the decrees passed by the Revenue Court. It is argued that a Court of appeal cannot have greater powers than those of the trial Court, and that if the plaintiffs are not found entitled to eject the defendant, their suits under Section 44, Tenancy Act, which merely gives a summary remedy to the landlord against one who is presumably a tenant, should be dismissed. In the view of the cases I am inclined to take, I do not think it desirable, to adjudicate on the questions raised in the above contention. At best the argument is technical. If the plaintiffs, are the owners of the lands in dispute and the defendant is holding the same without their consent, proper relief can be granted to them even assuming that the learned District Judge granted a relief which he had no jurisdiction to grant.
4. On the main question arising in the case the defendant is entitled to succeed in these appeals. The history of the lands in dispute is mentioned in detail in the findings of the Munsif on the issues remitted to him by the Revenue Court. It is also stated in the judgment of the lower appellate Court. It is No. longer in dispute that the lands in dispute formed part of an area which was the site of saltpetre and indigo factories and houses belonging to one Ram Prasad before 22nd June 1868, when his rights passed to one Indar Man at an auction-sale. Indar Man's son Bhagwan Das sold them to one Sadiq Husain and Karimuddin in 1881. Sometime after the sale in favour of Sadiq Husain and Karimuddin the factories and the bouses were demolished or fell down. Sadiq Husain transferred his share to his wife Afridunnisa, who also acquired the interest of Karimuddin. She thus acquired the rights of Ram Prasad in the sites of the factories and houses. She and her husband Sadiq Husain applied on 2nd September 1902, to the Settlement Deputy Collector that their names be recorded in the khewat as owners of the land which was then cultivated. To this application they made all the co-sharers of the mahal parties. The two plaintiff-respondents, Ghafoor Mohammad Khan and Mohammad Ali Khan, were among them. The Settlement Deputy Collector dismissed the application on the ground that the applicants had offered no proof of the purchase alleged by them. Mt. Afridunnisa then instituted a suit for a declaration of her right to the lands in dispute, but subsequently withdrew it. She however continued in actual possession, as before, and made a gift of the same to Amjad Ali, defendant-appellant, on 23rd February 1922. The suits, which have given rise to these appeals, were brought on 5th July 1929, for the reliefs already mentioned.
5. The learned Additional District Judge has held that the plaintiffs are the owners of the lands in dispute. He relied on Kishan Kunwar v. Fateh Chand (1906) 29 All 203 and Fateh Chand v. Kishen Kunwar (1912) 34 All 579, which is a decision of their Lordships of the Privy Council on appeal from the first mentioned case in which it had been held by this Court, on a suit brought by the purchaser of certain plots, which were once sites of houses, for a declaration of his right, that, in view of the entry in the wajib-ul-arz of the village he could not be considered to be the absolute owner of the plots purchased by him. The wajib-ul-arz declared that the occupiers of houses were entitled to transfer them; but it clearly recognized the outstanding right of the zamindar to the sites. It was inferred that the purchaser had no higher rights than those of the original owners of the houses. An important point to be taken note of in applying these rulings is that they related to a case in which house sites in an agricultural village were in question. The learned Additional District Judge has overlooked the fact that the lands now in dispute are situated in Qasba Aliganj, which is a notified area administered by a committee, of which one of the plaintiffs is the chairman. It may be conceded that in an agricultural village occupiers of houses, are presumed to be raiyats or licensees unless the contrary is proved. The position is materially different where the land in dispute lies in an urban area which cannot be characterised as an agricultural village. As pointed out in Incha Ram v. Bande Ali Khan (1911) 33 All 757, any village, which is not purely an agricultural village, but in which on the contrary, some two-thirds of the inhabitants are non-agriculturists persons in possession of house sites, as inn keepers and sellers of tobacco, cannot be presumed to be licensees in the absence of evidence showing the origin of their possession or payment by them to the landlord. It seems to me that this case and not that relied on by the learned Additional District Judge, is applicable to the circumstances of the present case in view of the fact that the lands in dispute, which were once the sites of factories and houses, lie in a Qasba or town and there is no evidence of the origin of the possession of the defendant's presecessor-in-title. The plaintiffs have not alleged, nor is there any evidence to prove that Ram Prasad, original owner, of the factories and houses, was let in possession as a licensee or otherwise had permissive possession on behalf of the landlord.
6. The subsequent events are more consistent with the hypothesis that he and his successors in interest were in adverse possession. Ram Prasad's rights were openly sold at an auction to Indar Man whose son sold the property, claiming to be the unqualified owner thereof, to Sadiq Husain and Karimuddin. The latter transferred the same to Afridunnisa, who in her turn transferred it to the present defendant-appellant. There was no suggestion by any intermediate transferor that he was not the owner of the property. The application of Afridunnisa made to the Settlement Deputy Collector in 1902, definitely asserted that the sites belonged to her in full ownership. Both the plaintiff-respondents were parties to that application along with the rest of the proprietary body. The assertion of proprietary right by Afridunnisa was, therefore to their positive knowledge. The fact that her application was dismissed cannot, in any way, detract from her assertion of proprietary right. Subsequently she reiterated her right in the civil suit which she instituted. The fact that the suit was subsequently withdrawn is of no consequence. If she had not been in possession and had to bring a suit founded on the same cause of action, the withdrawal of the suit might have operated as a bar but the fact of withdrawal cannot neutralize her assertion of proprietary title on that occasion. It is not disputed that Afridunnisa and, after her, the defendant-appellant have been in continuous possession of the lands in dispute. The plaintiffs have treated the defendant as a trespasser, though according to them he has been in possession without their consent from the date of partition at which part of the sites of the factories and houses was allotted to each co-sharer. As already stated they have not alleged that Ram Prasad or any of his successors attorned to the plaintiffs or their predecessors. In all these circumstances, I am of opinion that the possession of the defendant and his predecessors has been adverse at, least since 2nd September 1902, when Afridunnisa applied to the Settlement Deputy Collector for entry of her name as proprietress.
7. The learned Additional District Judge laid tress on the fact that Sadiq Husain, the predecessor-in-interest of the defendant was recorded as a tenant of 11 years' standing in the khasra of 1308 Fasli, and again as a tenant of 33 years' standing in the khasra of 1333 Fasli. The learned Judge infers from these entries that the defendant is a tenant. In my opinion this inference is wholly unjustified in view of the plaintiffs' admission that the defendant, or his predecessor, never paid any rent and of the previous history of the case showing that the original occupier, Ram Prasad, was in possession of the lands in dispute as occupier of factories and houses. A person who is in adverse possession of specific plots of land in a mahal and has obtained no mutation of names has to be entered in the khasra as a tenant or occupier. There is no other column for persons in adverse possession against the recorded proprietor. In the absence of other evidence, the entry in the khasra would have been taken to be prima facie evidence of the fact that such occupier is a tenant, as he is recorded; but where the evidence shows all the circumstances in which he entered into possession, the entry cannot be accepted as proof of tenancy in the teeth of admitted facts and circumstances showing the contrary.
8. The learned advocate for the plaintiff-respondent complains that the lower Courts did not record finding on the question whether Aliganj is an agricultural village. In the findings of the Munsif I find that there is a reference to the evidence which establishes that Aliganj is a notified area administered by a committee of which one of the plaintiffs is the chairman. The question is not one which could be the subject of a separate issue though it is natural for the determination of the defendant's right by adverse possession. It is true the Additional District Judge did not consider this aspect of the case, but I do not think it necessary, in all the circumstances of the case, to remit an issue. The plaintiffs themselves admit that Aliganj is a 'Qasba.' It is in evidence that it is administered by a notified area, of which one of the plaintiffs is the chairman. Apart from this, a clear assertion of proprietary rights in 1902 by Afridunnisa, followed by more than 12 years exclusive possession has perfected her right of ownership by adverse possession, even though Aliganj may not be considered to be an urban area or a 'Qasba.'
9. For the reasons stated above, I allow these appeals, set aside the decrees appealed from and restore those of the trial Court. The defendant shall have his costs throughout.