Sheonandan Singh and Others vs Kesho Prasad Singh

Ross, J.—The plaintiffs are the appellants. They brought a suit for a declaration that, in the lands in suit which are 58 bighas 2 khathas and 11 dhurs, they have got an absolute right and that the defendant has no right to realize rent in respect thereof. The allegation in the plaint is that these lands accreted to the village more than 60 or 70 years ago; the plaintiffs'' ancestors took possession as trespassers; and the lands came to be acquired by the ancestors of the plaintiffs and the plaintiffs, and whatever rights and interests the defendant had therein were extinguished. In para. 10 it is denied that there ever was any relationship of landlord and tenant in respect of these lands between the plaintiffs and the defendant; and in para. 12 the plaintiffs claimed to be entitled to hold possession of those lands as absolute owner without payment of rent. The lands are recorded in the record-of-rights as kabil lagan and the plaintiffs as tenants. Thereafter, there was a proceeding u/s 105 in which rent was assessed. This was followed by two suits: one in 1915 for damages for use and occupation; and another in 1918 for rent, which were decreed and the decrees were executed. The plaintiffs alleged in their plaint that all these proceedings were fraudulent. The Munsif decreed the suit but the learned Subordinate Judge reversed his decision and dismissed it.

On behalf of the appellant it is contended that the learned Subordinate Judge was wrong in saying that if the plaintiffs were absolute owners of the lands and not tenants under the Raj, they should have attempted to get their names recorded in the khewat as proprietors; and it is contended that the learned Subordinate Judge has misunderstood the case. The contention on behalf of the plaintiffs is that they have been in actual physical possession of the lands without payment of rent to the landlord and that a right has accrued to them over the lands without payment of rent to the landlord and that the landlord has lost his right to realize rent having failed to realize rent for more than 12 years and that the plaintiffs have acquired a rent-free holding by operation of law. Reference was made to the decision in Taran Chandra Gosh v. Ganendra Nath Roy 16 C.W.N. 235. The learned advocate for the appellants points out that in jamabandis of the defendant the appellants are shown as in occupation of these lands as trespassers. Now, the mere failure of the landlord to realize rent even for more than 12 years will not confer a rent-free title. A rent-free title can be acquired by adverse possession as was held in the case referred to, where it is said that if defendant 1, more than 12 years before suit denied the landlord''s right to any separate rent from him and forcibly in assertion of his claim, appropriated the entire crop and continued thereafter in possession, he would, although a tenant, have a right to hold the land as part of his original holding and the plaintiff''s suit would be barred by limitation.

Now, in the present case, there is no allegation and no evidence that the plaintiffs ever refused to pay rent to the landlord or asserted in his presence a right to hold the lands free of rent. In no other way that I am aware of, could they acquire a title to hold the lands free of rent except by grant. It is said that they did not set up a title as landlords, but para. 3 of the plaint can have no other meaning. If, as there asserted, all the rights and interests of the defendant, who is the landlord, have been extinguished, the argument now advanced is not the case set up in the plaint; and it is obvious that if the plaintiffs were in possession as trespassers for more than 12 years they must either have acquired proprietary right or a tenancy right. They repudiate the proprietary right and the only conclusion is that they are tenants and, and if they are tenants, they are liable to pay rent; and the mere fact that they have not paid rent for more than 12 years does not put an end to the landlord''s right to realize rent now. There is, therefore, no substance in the contention that they have acquired a rent-free holding by operation of law even if this contention were compatible with the allegation in the plaint where the relation of landlord and tenant was expressly denied.

The appeal is dismissed with costs.

Allanson, J.

I agree.