JUDGMENT

Darling, S.M.

1. (August 9, 1937).- The zamindar, Thakur Pulander Singh, sues for ejectment of three brothers Dauli Singh and two other Thakurs, as trespassers u/s 44 of the Tenancy Act, from two plots Nos. 499, area 13 biswas, and 691, area 1 bigha 7 biswas, situated in village Akauli of pargana Kot, in the Budaun district. By an order, dated the 29th May, 1936, the Assistant Collector decreed the suit: in appeal the Collector of Bareilly, sitting with the powers of a Commissioner, by his own order, dated 1st September, 1936, reversed this decision and dismissed the suit. The Plaintiff comes to the Board in second appeal.

2. The Defendants were formally ejected on the 1st September, 1923, namely early in 1331 F.; there is no evidence of any regular re-admission to the tenancy; but the Defendants have managed to hold on to these two plots during the intervening years. The suit was laid on the 24th February, 1936, namely more than twelve years since the 1st September, 1923, when formal possession was given to the Plaintiff zamindar on their ejectment: the lower appellate Court has, therefore, held that the suit is beyond limitation. The names of the Defendants have continued in the khatauni even after their ejectment; in the very next year, namely in 1332 F, there was a settlement: I agree with the lower appellate Court that it is quite impossible to believe that the zamindar had no knowledge of this entry. It looks as if the parties were still sparring with each other: the zamindar has carefully avoided giving any receipt for any rent which may have been paid, whilst the Defendants were content with their actual possession. As the Defendants have managed to retain possession for more than 12 years, they are now protected from ejectment. The appeal is dismissed with costs including Rs. 10 for pleader's fee in this Court.

3. In the khatauni the Defendants are recorded as occupancy tenants of plot No. 499-presumably because they had held this plot for more than twelve years at the settlement of 1332 F. But the tenancy had been broken in 1331 F. by their formal ejectment: in the absence of a regular re-admission any period subsequent to that ejectment cannot be reckoned towards the accrual of occupancy rights. This entry, therefore, appears to be wrong. It is suggested that the Collector should take steps to correct the khatauni in a regular proceeding under the Land Revenue Act. The Defendants have now acquired statutory rights in both plots: it is open to the zamindar to bring a suit u/s 45 of the Tenancy Act for the assessment of rent thereon.

Bomford J. M

(August 74, 1937).

I agree.