1. These two connected Appeals Nos. 1524 and 1525 of 1922 may be disposed of by the same judgment.
2. Two different plaintiffs brought two different suits out of which these two appeals have arisen for the ejectment of the same set of tenants from lands in two different mahals, except for this difference, the case is the same in both the appeals.
3. Two points require to be decided. One is whether the appeals, when lodged before the learned District Judge of Mainpuri, ought to have been admitted as within time and should not have been dismissed as barred by limitation. The second is whether, in the circumstances, the defendants-respondents are liable to be ejected.
4. On the first point it appears that the plaintiffs' suit for ejectment failed in the Court of the Assistant Collector. The suits were suits for ejectment of a tenant under Section 58 of the Tenancy Act. The defendants pleaded, inter alia, that they were under-proprietors and could not be ejected. The suits having been dismissed the plaintiffs appealed to the Commissioner. No question as to the jurisdiction was raised before the Commissioner. After certain remands the learned Officer decreed the appeal and decreed the suits.
5. The defendants went to the Board of Revenue and the Board held that the appeals were, wrongly laid before the Commissioner and directed the Commissioner to return the memoranda for presentation to the proper Court. The memoranda were returned on the 11th of April 1922, and were filed the very next day in the Court of the District Judge of Mainpuri. The learned District Judge found that the appeals before the Commissioner were lodged after the expiry of the 30 days allowed for filing appeals before the District Judge and that, therefore, the appellants could not succeed, unless they proved that before filing their appeals before the Commissioner, they had obtained legal advice as to the forum before which the appeal lay. Not being satisfied that any such advice had been taken, he held that the appeals were barred by time. As a matter of fact, the appeals would appear to have been admitted, entered into the register and numbered.
6. As I have already pointed out, the question as to the Court to which the appeals lay was not even raised before the Commissioner. A responsible officer like the Commissioner never thought that the appeals were not entertainable by him. Under the circumstances, if the appellants thought that, they had a right of appeal to the Commissioner, the mistake must be taken to be a bona fide mistake until the contrary is shown. In my opinion the learned District Judge should not have dismissed the appeals as barred by time and ought to have given the appellants the benefit of Section 5 of the Limitation Act.
7. On the merits the cases appear to be rather peculiar. It has been found that the defendants have been in actual occupancy of the land in suit for about 90 years. How they came into possession no body could explain. The question as to the status of the defendants arose twice in the course of the last Settlement of the District and two judgments were given; one on the 12th of September 1904 and again on the 13th of March 1905. The former judgment was given, as the defendants themselves or their predecessors applied to the Settlement Officer for the purpose of their being recorded in the khewat as proprietors. In an elaborate judgment the learned Officer (probably the Assistant Settlement Officer) decided that the defendants were nothing but the kedars within the meaning of Section 4(6) of the Tenancy Act. The second judgment was given because a Patwari asked for instructions as to how he was to record the defendants in his papers. The same conclusion was arrived at by the learned Assistant Settlement Officer. It is no longer disputed before me that, the defendants have been holding on payment of rent to the plaintiffs, the land-holders, that no attempt whatsoever has ever been made to enhance the rent, that the defendants have sued tenants and realised rents and further that, tenants holding under the defendants have been allowed to acquire occupancy rights in the lands held by them. On these facts the learned Assistant Collector and the learned District Judge held that the defendants could not be ejected, they being only the kedars within the meaning of Section 4(6) of the Tenancy Act.
8. It has been argued before me that a the kedar is a tenant all the same and is, therefore, as much liable to be ejected as any other tenant. Dr. Vaish, the learned Counsel appearing for the defendants-respondents, has argued that the appellants themselves have stated in the plaint that the defendants were lessees and that, therefore, unless they proved that, the terms of the lease had expired they could not successfully maintain the suit for ejectment.
9. I think this argument on behalf of the respondents is a little fallacious. A lease may be for a term. It may be permanent and it may be from year to year. The mere fact that the plaintiffs called the defendants lessees does not imply that they said or meant that the defendants were holding for a term. If the status of the, defendants be that of a tenant I see no reason why the suit should not be brought within Clause (a) of Section 58 of the Tenancy Act. It has not been actually contended before me that, the defendant are permanent lessees though some argument on this point was advanced at the Bar. The burden of proof is on the tenant when he is sued by his landlord for his ejectment, to show that he has a permanent right to stay on the land and cannot be ejected by the proprietor. This was held so lately as in the case of Nainapillai Marakayar v. Ramanathan Chettiar 82 Ind. Cas. 226 : 22 A.L.J. 130; (1924) A.I.R. (P.C.) 65 : 19 L.W. 259 : 34 M.L.T. 10; (1924) M.W.N. 293 : 46 M.L.J. 546 : 10 C. & A.L.R. 464 : 47 M. 337 : 28 C.W.N. 809 (P.C.) by their Lordships of the Privy Council. Their Lordships referred to the case of the Secretary of State for India in Council v. Luchmeswar Singh 16 C. 223 : 16 I.A. 6 : 13 Ind. Jur. 10 : 5 Sar. P.C.J. 275 : 8 Ind. Dec. (N.S.) 147 (P.C.), in which the fact that the tenants held the land on a low and uniform rent for 75 years was not held to be sufficient to prove a permanent title to the land. It follows, therefore, that there is no bar to the ejectment of the defendants. In spite of their long possession they have no higher title than tenants from year to year.
10. The result is that the appeals succeed and are allowed and both the suits of the plaintiffs are decreed with costs throughout the costs including fees in this Court, on the higher scale.