1. It is admitted that a portion of the land sued for was demised by the 1st plaintiff's tarwad to the predecessor-in-title of the defendants. This was in 1871. Subsequent to the demise the defendants encroached upon the neighbouring land. We need not decide now whether that land belongs to the Government or not. The cane ha3 proceeded on that presumption; apparently by virtue of their possession the defendants obtained pattas from the Government for the land. The plaintiff now sues to eject the defendants from the land originally leased to them as well as from the lands for which they hold patta under the Government. The District Munsif decreed the plaintiff's claim. This was reversed in appeal as regards a portion of the property.
2. In our opinion, the real point for decision has not been argued or considered by the Courts below, although it arises on the pleadings and is covered by the issues It is clear that where a tenant during the continuance of the tenancy encroaches upon lands belonging to a stranger, his possession of the encroached grounds is prima facie held by him for the benefit of the landlord. See Earl of Lisburne v. Davies (1866) 1 C.P. 259 : 13 L.T. 795 and Woodfall's Law of Landlord and Tenant, page 858. This view was accepted in India in Nuddyarchand Shaha v. Medjan 5 Ind. Dec. 549. No doubt it is open to the tenant to prove that in making the encroachment he was making an acquisition for his own exclusiiw benefit. The burden would be on him to establish this. See Birendra Kisore v. Laksmi 30 Ind. Cas. 896. Prima facie therefore the landlord can demand possession of the acquired property.
3. It was argued by Mr. Parameswara Iyer for the respondent that his client's attornment was the result of fraud on the landlord. This was found against by the District Munsif and the District Judge has expressed no definite opinion on that question. He must deal with that point when the case goes back to him. It was also argued that the grant of a patta by the Government put an end to the original tenancy. We are wholly unable to accept this contention. It may be that a person having a paramount title may put an end to the rights of the intermediate landlord, thereby extinguishing the sub-tenancy as well. In the present case, the Government and the plaintiffs are rival claimants. Consequently the citations from Foa and from 4 Halsbury 535. about eviction by a person claiming title paramount have no application to the present case On the other hand Usman Koya v. Chidriamokkausa Akoth 15 M.L.J. 368 supports the view taken by us.
4. In this case the exact measurement of the encroached plots has not been determined; that has to be done now. We do not think that the Government is a necessary party.
5. For these reasons we reverse the decree of the District Judge and remand the appeal to him for disposal on the merits in the light of the above observations. Parties may be permitted to adduce fresh evidence. Costs will abide the result.