Balli And Another v. Naubat Singh

Knox, J.:— This second appeal arises out of a suit instituted by one Naubat Singh. The defendants to the suit were two persons, Balli and Baldeo. It is said that there were other defendants, but we are not concerned with them in this appeal. Naubat Singh instituted his suit in the court of the Assistant Collector and he prayed for the ejectment of the defendants from certain lands specified in the plaint and situate in the village of Tigri. The suit is said to have been made under sections 58, 63 and 34(a) of Act No. II of 1901. The relief given in the plaint asked for absolute possession over the land. The defendants, amongst other pleas, raised the following:—That they have been in wrongful and adverse possession of the land for more than twelve years, that there has been no relation of landlord and tenant between the parties and that the plaintiff had sued in the civil court for dispossession on the ground that the defendants were the trespassers. They avoided any mention in this written statement of what happened in that suit, but they said that the defendants were not actually ejected. The Assistant Collector dismissed the suit. He held that there was no relation of landlord and tenant between the parties, and if there was any remedy, it did not lie in the Revenue Court.

(O.P 773)

2. Naubat then went in appeal to the District Judge.

3. The District Judge acting upon certain select decision of the Board of Revenue held, that section 34 of the Tenancy Act gives a landholder the option of treating a trespasser as a tenant and suing him for rent or for ejectment. He found that the defendants were trespassers. He, therefore, allowed the appeal and granted the plaintiff a decree for the ejectment of Balli and Baldeo. Balli and Baldeo have appealed to this Court and contended first, that no suit for ejectment of a trespasser can be maintained in the Rent Court, and secondly, that as they were judicially held to be trespassers in 1898, they have acquired prescriptive title by adverse possession. It does not appear to me to be necessary to go into the question whether section 34 of the Agra Tenancy Act does or does not authorize a suit for ejectment of a trespasser. The appellants are met by the respondent with a reply that in accordance with section 177 the District Judge had jurisdiction to hear the appeal from the Assistant Collector. The question of proprietary title had been in issue in the first court. It was in issue in appeal and the District Judge had accordingly power to decide the question before him whether the plaintiff could or could not get a decree for ejectment against the appellants. I find further on looking into the record that the question of adverse possession put forward by the appellants has not been properly tried by the learned Judge. The court of first instance does in its judgment say that a copy of the decree of a Civil Court and marked C shows that the plaintiffs are proprietors, and the copy of the dakhalnama shows that the plaintiff had been put in possession by the Civil Court. The learned Judge does not appear to have considered the question of possession in any form and the dakhalnamas to which the court of first instance refers does not contain the name of Naubat Singh at all. It is impossible for me to say whether the dakhalnamas were dakhalnamas over the land in dispute, and whether the matter was tried and decided between the predecessors in interest of Naubat Singh and the present appellants. I, therefore, send this issue down to the court below for trial:—

4. Was the decree in suit No. 300 of 1900 a decree between the predecessors in interest of Naubat Singh and the present appellants and was the suit No. 300 a suit for possession of the land now in dispute between the parties?

5. The court below will try this issue, take the additional evidence required and return its finding to this Court.

6. On return of finding on the issue remanded.

Knox, J.:— Sufficient time has not run to allow of the trespass to have matured into prescription. The last decree passed in the suit between the parties was on the 17th December, 1900, and the present suit was instituted on the 29th September, 1910.

7. The pleas 3 and 4 taken in appeal fail.

(O.P 774)

8. The question does arise whether section 34 authorizes or is sufficient to provide for the ejectment of a trespasser. Section 34 says that a person occupying land, without the consent of the landholder, shall be liable for the rent of that land at the rate payable in the previous year. Prima facie if he is liable for rent it would seem that he is liable to the consequences which follow when rent is not paid and also to such consequences as would enure in the case of non-occupancy tenants holding on under similar circumstances. On comparing the language used in section 4, clause 5, where tenant is described as “a person by whom rent is, or but for a contract, express or implied, would be payable,” it would appear that the intention of the legislature is that such trespassers should be liable to ejectment as though they were non-occupancy tenants. If this view be right, the first two pleas taken in the memorandum of appeal also fail.

9. The result is that this appeal is dismissed, the decree of the court below is confirmed, the appellants will pay to the respondents the costs of this appeal.

10. Appeal dismissed