JUDGMENT

George Knox, Acting C.J.

1. The subject-matter of this appeal is described in the plaint as a shop, the occupant of which carries on grocery business. It is situate within Mahal Radhe Lal in Mauza Barampur, Pargana Manghanr, Tahsil Roorkee. The plaintiffs are zemindars of the mahal, this is admitted. It is said in the plaint that the defendant Hori Ram occupied a certain plot of land in the abadi as a tenant of the zimindars and paid chaukidara tax for the same. But subsequently under a collusive and fictitious sale-deed dated the 30th of May 1912, he sold the aforesaid shop to defendants Nos. 2, 3 and 4 and he gave up residing in the village and took up .his residence in Qasba Parkazi, District Muzaffarnagar, That the defendants-vendees took possession of the shop and are now in possession of it. That the defendant No. 1 occupied the land covered by the said shop as a ryot. He had legally no right to transfer nor had defendants-vendees any right to remain in possession thereof without the permission and consent of the plaintiffs, who are zemindars and proprietors. That immediately on coming to know of the sale, the plaintiffs desired the defendants-vendees several times to remove the materials purchased, to vacate the site and to make over possession thereof to the plaintiffs but they refused to do so. The plaintiffs accordingly pray that defendants Nos. 2, 3 and 4 be ordered to vacate the site of the shop and may be ordered to remove the materials of the shop purchased and absolute possession be given to the plaintiffs.

2. The answer to the allegations contained in the plaint are that defendant No. 1 was the owner of the property in suit and had been in proprietary and adverse possession for more than twelve years. He was not a tenant of the plaintiffs, nor did he pay the chaukidara or any zemindari dues. That the defendants have never been in possession within twelve years.

3. The case is not complicated by any contention that the mahal is not a purely agricultural mahal, and the dispute between the parties resolves itself into one of a zemindar seeking to eject from abadi lands persons who without right or permission derived from him occupied portions of the abadi land. The Court of first instance decreed the claim and the defendants went in appeal. The appeal was heard by the Additional District Judge of Saharanpnr.

4. I have noticed in more than one case which has come from this Court that the Judge takes a peculiar view of the law on this subject. He starts off in the present case before me, as in other cases, in laying down that in the suit for possession it is the duty of the plaintiff to prove his possession within twelve years next before the institution of the suit. He appears entirely to forget the relation which exists between zemindar and tenant with regard to land situate in the abadi, It would appear that he had never really studied the leading case on this matter of Sri Girdhariji Maharaj v. Chote Lal 20 A. 248 : A.W.N. (1898) 27 : 9 Ind. Dec. 520 I say this, because if he had he would not have started with the inaccurate premise with which he does. In Second Appeal No. 1040 of 1914, I have pointed out the fallacy of this reasoning and called particular attention to it. If a person occupying a portion of the abadi in a purely agricultural mahal raises the defence of adverse possession, the burden of proving that possession lies very heavily upon him and he cannot rid himself of that burden by saying that the zemindar has not shown that he has been in possession within twelve years next preceding the suit. It is most natural that the plaintiffs should not know on what terms this land was given to the father of Umrao; if they had pretended to have such knowledge the probability would be that they would be setting up a fictitious case. It is enough, to say, I am zemindar of this abadi and it is for you (the ryot) to shew how contrary to the general custom prevalent in the United Provinces, yon prove the plea