To establish a sub-tenancy, there must be a contract of tenancy, either written or oral. The existence of a sub-tenancy can be inferred from circumstances such as payment of rent or revenue by the alleged sub-tenant or entries in revenue papers recording the person in possession as a sub-tenant. In the absence of such evidence, the mere fact of possession does not establish a sub-tenancy.

R.C. Lahoti, J.

1. This judgment shall also govern the disposal of S.A. No. 147/85, the parties to both the appeals being common substantially, and the two appeals arising out of two cross suits, in the circumstances to be noticed hereafter. The main judgment is being delivered in this appeal, though instituted later in point of time before this Court, as this appeal arises out of the suit which had commenced earlier in point of time.

2.1. On 9-8-1974, Deviram, the respondent No. 1, instituted Civil Original Suit No. 92-A/74 impleading Maltibai, widow of Nicharelal, and sons and daughters of late Nicharelal as defendants seeking declaration of his title over land S. No. 241 area 1 bigha 16 biswas situated at village Alapur, tahsil Joura, Distt. Morena. Nicharelal had expired sometime in the year 1971. The plaintiff Deviram alleged that late Nicharelal had inducted the plaintiff Deviram as sub-tenant on the suit land sometime in samvat year 2017 (near about B.Y. 1960), ever since when he had continued to cultivate the land. However, it was found that in the revenue papers, he was merely recorded in the remarks column as the person in possession. Apprehending a cloud cast on his title, the plaintiff sought for declaration of his Bhumiswami rights in the background of the provisions of the M. P. Land Revenue Code, 1959 recognising sub-tenants as occupancy tenants and enlarging their rights into that of a Bhumiswami on failure of the Bhumiswami to resume the land.

2.2. Maltibai filed the written statement contesting the case of the plaintiff on all counts and further pleading that the plaintiff had never been in possession of the land owing to the fact of his being a sub-tenant though he had committed a trespass by taking forcible possession over the suit property on 22-10-1977 that is after the institution of the suit.

2.3. The trial Court dismissed the suit holding that the plaintiff had utterly failed in proving his possession over the suit property as a sub-tenant. Deviram preferred an appeal registered as C. A. No. 49A/82. The learned District Judge has allowed the appeal holding that the plaintiff Deviram had been in possession of the property as sub-tenant ever since samvat year 2017 and hence he became an occupancy tenant and then a Bhumiswami by operation of law. As against this judgment and decree dated 10-9-1985 of the District Court, Maltibai, the defendant No. 1, has preferred this appeal registered as S.A. No. 159/85.

3.1. On 12-11-1982, Maltibai filed Civil Original Suit No. 165-A/82 seeking declaration of her own Bhumiswami rights over the same land S. No. 241 area one bigha 16 biswas alleging Deviram to be a trespasser and hence also seeking recovery of possession. The foundation of the suit was the judgment and decree dated 3-8-1982 passed in Civil Original Suit No. 92-A/ 74, wherein the rights of the parties had stood adjudged. Deviram defended himself by taking similar pleas as he had taken as plaintiff in the earner suit instituted by him. Bar of limitation was also pleaded stating that Deviram having been in possession of the suit property for over 12 years, the right of the plaintiff to seek recovery of possession was lost. Having tried this suit independently by framing issues and recording evidence, ultimately vide judgment and decree dated 13-11-1983 the trial Court decreed the suit.

3.2. Deviram preferred first appeal registered as No. 188-A/83. The learned District Court took note of the judgment and decree passed on that very day in First Appeal No. 49-A/82 holding Deviram to be a Bhumiswami of the land and consequently allowed this appeal too directing suit filed by Maltibai to be dismissed.

3.3. As against the abovesaid judgment and decree dated 10-9-1985 passed in First Appeal No. 188-A/83, Maltibai has preferred S. A. No. 147/85. Needless to say, the decision of this appeal hinges mainly on the decision of S.A. No. 159/85.

4.1. Vide order dated 25-1-1986, Second Appeal No. 159/85 was admitted by th