Long-term possession and undisturbed enjoyment of land, when coupled with the payment of rent, do not convert a tenancy into an under-proprietary or ownership right. Rights protected under settlement rules are limited to those existing at the time of the original confiscation.

Judgement

Appeal from a decree of the Judicial Commissioner of Oudh (March 19, 1883), reversing a decree of the District Judge of Fyzabad (May 6, 1882), and ordering that the Respondents claim to recover possession of villages Newada and Gadiana be allowed with costs.

The main question in the appeal was, whether the Appellant had acquired by prescription a right to hold the villages as against the Respondent by way of under-proprietary right within the provisions of the Oudh sub-Settlement Act, 1866. The facts appear in the judgment of their Lordships.

The Judge held that the Plaintiff was not entitled to obtain possession of the villages from the Defendant, and that the Defendant was not a mere tenant, but a holder with a title to an under-proprietary right. The Judicial Commissioner, on the other hand, held that the Defendant was a mere tenant at will, and liable to ejectment by the Plaintiff.

Sykes, for the Appellant, contended that the Appellant, assuming the onus probandi to be upon him, had proved sufficient to have entitled him to a sub-settlement, even if he had been claimant therefor and not a defendant in ejectment. He claimed in consequence to retain the land in suit not as proprietor or as under-proprietor, but as holding at a favourable rent. It had been granted to him in perpetuity at a fixed rate, under an agreement between the talookdar and Kesri Singh in lieu of a money compensation for the death of relatives. The Respondent in his plaint alleged that the Appellant was a lessee under a lease for an unlimited, that is an undefined, term; and on that view there was at least a contract followed by continuous possession for fifty-five years. In either case the Appellant was within the rules of the schedule to Act XXVI. of 1866; and he would be entitled on proper application to be maintained in possession. The increase of rent at the regular settlement did not bear on the question of under-proprietary right; he held at a rent which was fixed to be a certain percentage above the Government revenue. [Sir Barnes Peacock —Even if the tenant cannot prove his right to a sub-settlement, still under the Circular Orders of the Government, having the force of law under the Indian Councils Act, 1861 , may there not be said to be a recognition of a proprietary right. In other words, do you contend that there are two classes of tenants first, those entitled to sub-settlement; second, those entitled to be maintained in possession as leaseholders ?] Rs. Besides, seer and nankar are alluded to in the evidence, and they are always attached to proprietary right alone. [Sir Barnes Peacock referred to Mussumat Thukrain Sookjaj Koowar v. The Government and Others (14 Moores Ind. Ap. Ca. 112.). Do you contend that the tenant being put off from claiming proprietary right, was allowed to hold at an easier rent; and that, therefore, a right arises under the special circumstances ?] Reference was then made to Kishnanunds Case , decided by the Privy Council on the 20th of May, 1879; Rajah Kishen Datt Ram v. Rajah Mumtaz Ali Khan (Law Rep. 6 Ind. Ap. 156.); Maharajah of Bulrampur v. Uman Pal Singh and Another (Law Rep. 5 Ind. Ap. 225.); Gourishakur v. Maharajah of Bulrampur (v) ; Sir Maharajah Drig Bijai Singh v. Gopal Datt Panday (Law Rep. 7 Ind. Ap. 17).

Graham, Q.C., and Woodroffe, for the Respondent, contended that the concurrent judgments of the Courts below disposed of the present contention of the Appellant, since they found as a fact that Kesri Singh did not in 1826 acquire an under-proprietary tenure of the land in suit. The tenure was not its inception, and there was no allegation or proof that it afterwards became by pre scription or otherwise, such as to entitle the Appellant to an under-proprietary right. The rules referred to do not relate to this case, which is one of a beneficial lease, terminable at the will of the lessor on proper notice. The Appellant was not even examined to contradict that case. To be entitled to sub-set