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Smart Summary

Factual and Procedural Background

The plaintiff in the Court of first instance (the zamindar of Mauza Kataila) claimed that the defendants were non-occupancy tenants who had been recently ejected from their cultivatory holdings in Mauza Kataila. The plaintiff stated that, in the time of his predecessor and with that predecessor's permission, the defendants had built a dwelling house and a cattle-shed for agricultural purposes. After the defendants were ejected from their cultivatory holdings, the plaintiff contended they no longer had any right of residence on the land in dispute and repeatedly asked them to quit. He sought a decree for possession of 5 biswas of pukhta land (as set out in the plaint) and an order directing the defendants to remove their materials from the land.

The defendants replied that the house had been built for general residential purposes, had existed for more than 12 years (indeed for many generations), and therefore the plaintiff was not entitled to recover possession. The Court of first instance awarded the plaintiff a decree, holding that the house was appurtenant to the agricultural holding and that a tenant who ceased to have any holding lost the right of occupation in the abadi (absent any special contract). The defendants appealed. The lower appellate Court reversed the first instance finding, concluding there was no evidence that the house site was an appurtenance to the agricultural holding and that there was no legal presumption that a tenant's dwelling was necessarily appurtenant; it therefore held the defendants to have occupied the site adversely and to have become owners.

The zamindar appealed to the present Court, raising five pleas (three of which are specifically addressed): (1) that the lower appellate Court erred in holding the sites were not appurtenances to the holdings; (2) that the lower appellate Court erred in holding that absence of evidence of appurtenance meant the defendants occupied adversely and became owners; and (3) that it was for the defendants to prove adverse occupation. The present Court heard argument and rendered the judgment summarized below.

Legal Issues Presented

  1. Whether the house and cattle-shed in the abadi were appurtenances to the agricultural holding from which the defendants were ejected.
  2. Whether, in the absence of evidence that the defendants held the site as an appurtenance, the defendants must be held to have occupied the site adversely and thus become owners by adverse possession.
  3. Which party bears the burden of proof on the question of adverse occupation or ownership of a site in the abadi: the zamindar (plaintiff) or the occupant (defendant)?

Arguments of the Parties

Plaintiff (Zamindar) — Principal contentions

  • The defendants were non-occupancy tenants who had been ejected from their cultivatory holdings and thus no longer had any right of residence on the disputed land.
  • The house and cattle-shed had been built (according to the plaint) with permission of his predecessor and were appurtenant to the agricultural holding.
  • The plaintiff sought a decree for possession of 5 biswas of pukhta land and for the defendants to remove their materials from the land.
  • On appeal the zamindar argued (among five pleas) that the lower appellate Court erred in (a) holding the sites were not appurtenances, (b) treating absence of evidence of appurtenance as meaning adverse occupation and ownership by the defendants, and (c) assigning the burden of proof on this issue to the zamindar rather than to the defendants.

Defendants — Principal contentions

  • The house was built for general purposes (not merely agricultural) and had existed for more than 12 years and for many generations, so the plaintiff was not entitled to recover possession.
  • There is no presumption in law that the house of a tenant was built merely for agricultural purposes; the house was large (three sections), subject to additions, and had been regarded by the defendants as their residence.
  • The defendants contended (in the lower appellate Court) that the suit was time-barred.
  • At no stage did the defendants suggest they possessed more than one abadi house; their claim was to the single house and cattle-shed in question.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Moti Ram v. Munna Lal Quotation in earlier judgment: "There is no legal presumption that every—dwelling house belonging to an agriculturist is appurtenant to his holding. A house may or may not appertain to the holding, and the fact whether it does appertain to the holding must be established in each case upon the evidence." The Court distinguished this authority: in Moti Ram the house was admittedly built and tenanted for agricultural purposes and the parties and issues differed (involving gagees and mortgagors). The present Court held that the lower appellate Court misapplied Moti Ram and that Moti Ram did not support the proposition that failure by a zamindar to prove appurtenance requires declaration of adverse occupation and ownership by the tenant.
Net Ram v. Tej Ram Principle articulated: "In the abadi of a village the house of a tenant is the only thing that can be said to be an appurtenance to his holding." Whether a plot is an appurtenance depends on the circumstances of each case; example given where plots used for cattle/manure and permitted for long period became appurtenances. The Court explained Net Ram concerned different circumstances (plots used for cattle/manure permissively by zamindars for over 20 years) and did not justify the lower appellate Court's extraordinary conclusion that absence of proof of appurtenance converts the occupier into owner by adverse possession. The Court relied on Net Ram to show that appurtenance is fact-specific and not to invert the burden of proof.

Court's Reasoning and Analysis

The Court carefully reviewed the findings of fact and law made by the Court of first instance and the lower appellate Court. It characterized the lower appellate Court's conclusion as a "startling proposition" that when a zamindar seeks to eject a tenant from an abadi house after the tenant has been ejected from the tenancy, the zamindar must be prepared to prove that at the outset the zamindar granted the site to the tenant as an appurtenance to the holding; otherwise the tenant must be held to have occupied adversely and to have become owner by adverse possession.

The Court emphasized several legal and factual points, each grounded in the record:

  • The present case involved a single house and a cattle-shed; no special contract was pleaded between the original tenants and the original zamindar at the time of entry into possession.
  • The lower appellate Court relied on Moti Ram v. Munna Lal and Net Ram v. Tej Ram, but the Court found both cases distinguishable on their facts and not authority for the proposition that failure by a zamindar to prove appurtenance means the occupant becomes owner by adverse possession.
  • While Moti Ram contains the observation that there is "no legal presumption that every—dwelling house belonging to an agriculturist is appurtenant to his holding," the Court noted that the learned Judge in Moti Ram did not go on to hold that failure of the plaintiff to prove the house was an appurtenance mandates a finding of adverse possession and ownership by the occupant.
  • Net Ram was concerned with plots permissively used for cattle and manure over a long period (20 years) and the question whether such plots had become appurtenances; it did not support the lower appellate Court's rule converting mere absence of proof into adverse ownership.
  • The Court articulated the ordinary position (as it understands the law and local practice): zamindars are generally the proprietors of all land within a mahal (including abadi sites). When a tenant enters the village, the tenant typically occupies the site as a tenant of the zamindar; if the tenant is later ejected or abandons the tenancy, the site reverts to the zamindar unless there is a special custom or contract to the contrary.
  • Therefore the presumption is in favour of the site occupied being an appurtenance to the tenancy (in cases like the present where only a single site is involved and no special contract is pleaded), and it is for the occupant who sets up an adverse title to prove how he acquired it.
  • The Court rejected the defendants' contention that mere longevity of occupation (e.g., 12 years) or the house being large and adapted for general residential use automatically displaces the zamindar's title where no special contract or distinct factual foundation for adverse possession was shown.

On that basis the Court concluded that the lower appellate Court had erred in reversing the first instance decree and in shifting the practical burden so as to treat the defendants as owners in the absence of proof by them of adverse title.

Holding and Implications

Core Ruling: APPEAL ALLOWED; LOWER APPELLATE DECREE SET ASIDE; FIRST INSTANCE DECREE RESTORED.

Direct consequences for the parties:

  • The decree of the Court of first instance in favour of the zamindar (for ejectment/possession of the specified 5 biswas of pukhta land and the removal of materials) is restored.
  • The decree of the lower appellate Court that had held the defendants to have occupied the site adversely and to be owners is set aside.
  • Costs were awarded in all Courts in favour of the appellant zamindar.

Broader legal implication stated by the Court (as articulated in the opinion):

  • The Court affirmed the principle that, in the ordinary course within the provinces described, the presumption is that an abadi site occupied by a tenant is appurtenant to the tenancy; where a tenant is ejected or abandons the tenancy the site normally reverts to the zamindar unless a special contract or established custom provides otherwise.
  • The burden lies on a person who asserts an adverse title to prove the special circumstances or contract under which he claims proprietorship of an abadi site; absence of a zamindar's proof that a site was appurtenant does not by itself establish adverse occupation and ownership in the occupant.

Result recorded in the opinion: "Appeal decreed."

    Shohrat Singh v. Jhagru

    1. The plaintiff in the Court of first instance is admittedly, the zamindar of Mauza Kataila. According to him the defendants were non-occupancy tenants who have been recently eject from their cultivatory holdings in Mauza Kataila. He says that the defendants in the time of his predecessor, and with the permission of his predecessor, built a dwelling house and a cattle-shed for the purpose of agriculture. As the defendants have been ejected from all the cultivatory holdings, he contends that they have no longer any right of residence on the land in dispute. He asked them on several occasions to quit; but they have failed to do so. His prayer to the Court was that he might be given a decree for possession of 5 biswas of pukhta land as set out in the plaint and the defendants be directed to remove their materials from the land.

    2. The defendants in their written reply took up the position that the house built by them was built for all purposes for which a house could be used. It hail been in existence for more than 12 years, indeed for many generations, hence the plaintiff is not entitled to recover possession. The Court of first instance had no hesitation in awarding the plaintiff a decree.

    3. It held that the house was appurtenant to the agricultural holding and that when a tenant ceases to have any holding, his right of occupation in the abadi cases,—this, of course, in the absence of a special contract to the contrary and in this case no special contract was pleaded. It accordingly gave the plaintiff a decree for ejectment.

    4. The defendants went in appeal and their contention in appeal was practically the same as in the Court of first instance, with this addition that there can be no presumption in law regarding the house of a tenant that house was built merely for agricultural purposes. They laid stress upon the house being a very big one, consisting of three sections, defendants had always considered it their place of residence, made additions to it from time to time, and the suit was time barred. It will be noted in these pleadings that no suggestion has been made at any stage of the case that the defendants are possessed of more than one house in the abadi. The lower appellate Court held that there were two points before it for determination; the first point that it laid down was whether the house in dispute was or was not appurtenant to the agricultural holding. Secondly, it said that there was absolutely no evidence on the record to show that the house site was an appurtenance to the agricultural holding. There was no presumption in law that the house occupied by a tenant was of necessity an appurtenance to the cultivatory holding. The learned Sub-ordinate Judge said that he could find no precedent to this effect. On the contrary, he referred to the case of Moti Ram v. Munna Lal (1) and to the case of Net Ram v. Tej Ram (2). As he understood these judgments he held that there was no presumption that a site occupied by a dwelling house of every agricultural tenant was necessarily an appurtenance to the agricultural holding. The question was a question of fact and not of law and it rested with the plaintiff zemindar to prove that the house was the appurtenance of the tenancy. In the present case there was no evidence that the defendants held the site as an appurtenance; they must be held to have occupied the site adversely to the plaintiff and his predecessor and they are now owners.

    5. This is a startling proposition. It amounts to this: that when the zamindar wishes to eject a tenant, who has been ejected from his tenancy, from the house occupied by him he must come into Court prepared with the proof that at the beginning of their relations the zamindar granted the respondent-tenants their position in the abadi as appurtenant to their holding. If the zamindar cannot prove this, the tenants must be held to have occupied the site adversely to the zamindar, and, if they had been in possession long enough, to be the owners of the house in dispute. The zamindar has come to this Court in appeal and has taken five pleas. First, that the Court below has erred in holding that the sites are not appurtenances to the holdings from which the tenants have been ejected. Secondly, that, the Court is in error when it says that, as there is no evidence that the tenants held the sites as appurtenances, they must be held to have occupied the sites adversely to the plaintiff and his predecessors and have now become owners; thirdly, that it was for the defendants to prove that they occupied the land adversely to the zamindar. The remaining two pleas do not call for any notice. It must be remembered that throughout the present case there is no suggestion that the defendants have been occupying more than one house. The judgment speaks of sites, but on looking at the plaint I find that the plots are a house and a cattle-shed. There is no suggestion morepver from first to last that there was any special contract made between the original tenants and the original zamindar at the time of their entering into possession. It is the ordinary case of a site in the village abadi. The cases on which the learned Sub-ordinate Judge has relied are not precedents that can be followed in the present case. The circumstances in each case were different from the circumstances here. In Moti Ram v. Munna Lal , the house in dispute was admittedly a house built and tenanted for agricultural purposes and the contention was that by a K special custom prevailing in the village such a house could be sold. It is true that the learned Judge of this Court before whom the case came used these words:

    “There is no legal presumption that every—dwelling house belonging to an agriculturist is appurtenant to his holding. A house may or may not appertain to the holding, and the fact whether it does appertain to the holding must be established in each case upon the evidence.”

    6. But the learned Judge never went on, as the learned Sub-ordinate Judge in this case, to lay down that if a plaintiff failed to prove that the defendant held the house as appurtenance, the defendant ??? must be held to have occupied the ??? adversely and to be the owner ???

    7. In Moti Ram v. Munna Lal zamindar was not a party to the ??? contending parties were the ??? gagees of a grove and of the house in ??? abadi and the defendants were the mortgagors. In Net Ram v. Tej Ram , the contention was that the land in dispute was a place of waste land in the abadi which the cosharers of the village had I permitted the defendants to use for stacking manure and keeping cattle and the house occupied by the tenant was not in dispute at all. The learned Judge in his judgment says:

    “In the akadi of a village the house of a tenant is the only thing that can be said to be an appurtenance to his holding.”

    8. What is an appurtenance to the holding of an agricultural tenant, he held, must be decided according to the circumstances of each case. In the case before him the defendants had got a large area of land to cultivate, for which they required a number of bullocks and other accessories and they must have a piece of land for their cattle and manure and if the plot in suit had been allowed to remain in their possession for more than 20 years by the zamindars of the village for the use of cattle and manure, the plots had become an appurtenance to the agricultural holding of the defendants. In this case too the extraordinary decision was not arrived at, that if the plaintiff did not prove that the land in dispute was an appurtenance, the defendants, if they held possession for more than 12 years, had acquired a title by adverse possession and had become owners of the property in dispute. It seems to me that a decision of this kind shows a complete ignorance of the ordinary position in those provinces of zamindars and tenants with reference to a site in the abadi; ordinarily the zamindars are, under, Government, owners of every inch of ground within a mahal, whether that ground be cultivated or waste. If any one other than the zamindar seeks to establish a title to any portion of this land, the burden is on him to prove the special circumstances or special contract under which he claims title. There are undoubtedly cases in which it can be established, and is established, that adverse possession has been held and ??? for a sufficient number of years ??? that proprietorship has passed away ??? the zamindar, but the presumption ??? other way. The zamindar admits ??? into the village and in order to ??? him contented and happy grants ??? a portion of the land within the ??? abadi and in some cases no doubt; gives him permission to use other portions of the abadi for other purposes; but the tenant comes in as a tenant of the zamindar both as regards the cultivatory land and the site or sites in the abadi. It is contrary to common sense that the zamindar would let a person occupy any portion of the land in a mahal except for purposes connected with the village. If the person in possession sets up a title adverse to the zamindar, it is for him to prove how he acquired the title. The learned Munsif was quite right in holding that the presumption was in favour of the site occupied being an appurtenance to the tenancy. Circumstances are quite different if it be the case that more than one site is held by the contesting quondam tenants, but I need not discuss that question in this judgment, for that is not the case before me. The contention that the house was built for every purpose for which a house can be built is not entitled to much weight. The zamindar knows that the site in the abadi is his by right and that the tenant must know the same. If the tenant chooses to build on the site allotted to him by the zamindar a three storeyed house or some house out of the common, the zamindar is not bound to go and expostulate with him for having built such a house. As long as the tenant cultivates the land in the village he will remain. If he abandons, or is ejected from the tenancy, then, unless there be some special custom or contract to the contrary, the site reverts to the zamindar and the tenant who built the three storeyed house at his risk has to remove his materials and vacate the site. This is the general law of the land in my opinion.

    9. The result then is that I allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs in all Courts.

    V.B/R.K

    10. Appeal decreed.

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    Comments

    Shohrat Singh v. Jhagru
    (Jun 1, 1915)