JUDGMENT
George Knox, J.
1. The plaintiff in the Court of first instance is, admittedly, the zemindar of Mauza Kataila. According to him the defendants were non-occupancy tenants who have been recently ejected from their cultivatory holdings in Mauza Kataila. Pie 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 had 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. 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 ceases, 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.
3. 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 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 Subordinate 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 S.A. No. 1119 of 1911 and to the case of Net Ram v. Tej Ram 20 Ind. Cas. 260 : 11 A.L.J. 445. 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.
4. This a startling proposition. It amounts to this that when the zemindar 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 zemindar granted the respondent tenants their position in the abadi as appurtenant to their holding. If the zemindar cannot prove this, the tenants must be held to have occupied the site adversely to the zemindar and if they had been in possession long enough, to be the owners of the house in dispute. The zemindar has come to this Court in appeal and has taken five pleas. Thirst, 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 zemindar. 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, moreover, from first to last that there was any special contract made between the original tenants and the original zemindar 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 Subordinate 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 S.A. No. 1119 of 1911 the house in dispute was admittedly a house built and tenanted for agricultural purposes and the contention was that by a 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.” But the learned Judge never went on, as the learned Subordinate 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 house adversely and to be the owner f thereof. In Moti Ram v. Munna Lal S.A. No. 1119 of 1911 the zemindar was not a party to the suit; the contending parties were the mortgagees of a grove and of the house in the abadi and the defendants were the mortgagors. In Net Ram v. Tej Ram 20 Ind. Cas. 260 : 11 A.L.J. 445 the contention was that the land in dispute was a piece of waste land in the abadi which the co-sharers of the village had 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 abadi of a village, the house of a tenant is the only thing that can be said to be an appurtenance to his holding.” 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 accessaries 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 zemindars 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 these Provinces of zemindars and tenants with reference to a site in the abadi. Ordinarily the zemindars 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 zemindar 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 maintained for a sufficient number of years and that proprietorship has passed away from the zemindar, but the presumption is the other way. The zemindar admits a tenant into the village and in order to keep him contented and happy grants him a portion of the land within the so-called 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 zemindar both as regards the cultivatory land and the site or sites in the abadi. It is contrary to common sense that the zemindar 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 zemindar, 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 zemindar 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 zemindar a three storeyed house or some house out of the common, the zemindar 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 zemindar 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.
5. 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.
