JUDGMENT

Tek Chand, J. - This dispute relates to a small plot of 14 marlas in area, being a part of Khasra No. 1057 which represents the abadi of the village. The facts found by the learned District Judge are as follows:

2. The plaintiffs-appellants are the owners of Khasra Nos. 1512, 1513 and 1514 the last of which adjoins the abadi. In 1914 they leased these fields to one Fazal Din tenant for cultivation and it appears that at that time Fazal Din encroached upon the adjoining portion of the abadi. This encroachment was, however, removed soon after. Later, Fazal Din ceased to cultivate the land and the plaintiffs let fields Nos. 1512,1513, and 1514 to Gaman respondent as tenant under them. Gaman also encroached upon the abadi which adjoined these fields and took possession of the plot measuring 14 marlas which is now in dispute. Gaman has since been ejected by the plaintiffs from fields Nos. 1512, 1513 and 1514 but he still continues in possession of the portion of the abadi encroached upon.

3. The plaintiffs sued to recover possession of this plot from Gaman but the learned District Judge has dismissed the suit, holding that the plaintiffs had acquired no proprietary right in it and cannot oust the quondam tenant even though his possession is unlawful.

4. In my opinion the learned District Judge's decision cannot be sustained as on the findings of facts arrived at by him the plaintiffs were legally entitled to a decree. The proposition of law is firmly established that where during the continuance of the tenancy a tenant encroaches upon land belonging to a third person, his possession of the land so encroached upon is prima facie for the benefit of the landlord. In such cases the presumption is that encroachments made by the tenant are a part of the holding and on the termination of the tenancy the tenant must render them up to the landlord whether he has directly undertaken to do so or not. See Andrews v. Hailes [1853] 22 T.J.Q.B. 409 where Lord Campbell has elaborately discussed the principles underlying the rule and the judgment of Willes, J. in Earl of Lisburne v. Davies [1866] 1 C.P. 259--35 L.J. C P. 193. The law on the subject is thus summed up by Woodfall in his standard work on Landlord and Tenant (20th Edition) at page 894:

Encroachments made by a tenant from the adjoining waste during the term are prima facie for the benefit of the tenant and afterwards of his landlord, unless it appears by some evidence that the tenant at the time they were made intended them for his own exclusive benefit.

5. The view taken by the Indian Courts is in accord with this rule. See Tepu Mahammad v. Tefayit Mahammad 19 C.W.N. 772 and Ammu Ammal v. Puthiaparambath Moidin [1918] M.W.N. 38. In this case Gaman respondent has led no evidence to displace this presumption and there are no materials on the record from which it can be inferred that he intended to make the encroachments for his sole benefit I, therefore, accept the appeal and setting aside the decree of the learned District Judge, decree the plaintiffs' Suit with costs throughout.