JUDGMENT
1. This appeal arises out of a suit in which the plaintiff claimed possession of a certain plot in an enclosure situated in the town of Meerut. The plaintiff's title was an auction-purchase in a decree against one Ala Ullah. The defendant pleaded that he was in adverse possession of the property in dispute. The first Court decreed the plaintiff's claim. The lower Appellate Court reversed the decree of the Court of 6rst instance and dismissed the plaintiff's suit. It appears that previously the plaintiff had brought a suit against this very same defendant alleging him to be a tenant who had refused to pay his rent, the rent being the monthly sum of Re. 1. That suit was dismissed, the Court holding that an old tenancy had subsisted and that the plaintiff had failed to prove a new tenancy at the rate of Re. 1 per month. The plaintiff then brought the present suit.
2. Both the Courts below have found, and we think rightly found, that the defendant and his predecessors were not in adverse possession of the land. There is no dispute as to the title of Ata Ullah, nor is there now any dispute as to the title of the plaintiff as auction-purchaser of the estate of Ata Ullah. The lower Appellate Court has decided against the plaintiff upon the ground that the defendant and his predecessors having for a very long time been in possession, it must be presumed that he was in possession by virtue of a building license. We think that this view is not correct. There is no evidence of any kind that the land was ever given to the 'defendant's predecessor-in-title for building purposes. The building on the plot is a kutcha structure worth about Rs. 25. Once it was found that the defendant was not in adverse possession of the plot in dispute, it lay upon him to show by proper evidence that he could not be disturbed and was entitled to remain in possession. The defendant never pleaded that by an arrangement between the predecessor-in-title of the plaintiff and his own predecessors-in-title, they were to remain for all time in possession in consideration of certain services to be rendered. No doubt in a statement as a party to this suit he admitted that he and his predecessors-in-title had been in the habit of paying certain dues and rendering services to Ata Ullah and his ancestors. In our opinion under these circumstances and bearing particularly in mind the nature of the defendant's plea that he had become absolute proprietor of the plot in dispute by virtue of adverse possession, the decision of the Court below was not correct. It was contended by Mr. Abdul Raoof that if the defendant be deemed to be a tenant, the tenancy could not be determined without the service of a proper notice determining the tenancy. In our opinion this question does not arise, because the defendant both in his written statement in the present suit and previously denied the plaintiff's title.
3. We allow the appeal, set aside the decree of the lower Appellate Court and restore the decree of the Court of first instance with costs in all Courts.