JUDGMENT Bennet, J.
1. These are two Letters Patent appeals by the defendants against the judgment of a learned single Judge of this Court upholding the order of the lower appellate Court of remand and a decree of the lower appellate Court passed after remand for compensation and rent due from defendant to plaintiff under Section 34, Act 2 of 1901.
2. The suit is in regard to plot 214(a) in village Sangror. The plaintiffs. Dharampal Singh and others are zamindars in this village and in the settlement khewat of 1913, the No. 214(a) is entered as a plot in the area of which the plaintiffs are zamindars. Apart from that entry, the plaintiff has not proved that he exercised any proprietary rights over the plot in question. The plot in question along with other plots was originally a grove and belonged to Bhairon Singh and Bisheshar Singh who were zamindars. In 1843 there was an auction sale by which the zamindari rights of Bhairon Singh and Bisheshar Singh were purchased by Ahar Singh who was the predecessor of the present plaintiffs. The next trace that we can find of this grove is that it was in the possession of two persons Arjun Singh and Indar Pal Singh. These persons made a mortgage of their rights in the grove to the defendant Baijnath Prasad before 1905 and made a sale deed to Baijnath Prasad after 1905. Neither of those documents are on the record. In 1905, it is admitted, that there was au ejectment suit brought by the predecessors of the present plaintiffs against Baijnath Prasad, defendant and it is admitted that ejectment suit failed. There are certified copies on the record of the judgment of the Assistant Collector, or the Commissioner in appeal and of the Board of Revenue in second appeal.
3. The Assistant Collector held that the land was grove and therefore he dismissed the suit for ejectment without coming to a finding on the other ground of defence that the defendants were in possession as proprietors. In first appeal, the Commissioner held that the land was not grove, and had been cultivated for a long time, but that the appellants, plaintiffs, had no locus standi, because they had never been proprietors of the land in suit. The Board of Revenue upheld the Commissioner to this extent that the relation of landlord and tenant did not exist between the parties and that therefore there could be no ejectment in the revenue Court and the application for revision was dismissed. It has been subsequently pointed out that it was not open to the Commissioner to come to a finding on the question of proprietary right. That is no doubt correct, and the finding of the Commissioner therefore on that point does not operate as res judicata between the parties. But the Commissioner was entitled to come to a finding of fact that the land in 1905 was no longer grove but had been for a long time cultivated land. It is also a fact that the written statement of the defendants in 1905 put forward the contention that the defendants were proprietors. In the settlement of 1913, the plaintiff made an attempt to have rent assessed. Although the name of the plaintiff was entered in that settlement as proprietor, that application was refused by the settlement officer on the ground that the defendant was not an occupancy tenant. The settlement officer acted apparently because Section 87, Act 3 of 1901 only empowers him to determine the rent of ex-proprietary and occupancy tenants and not of non occupancy tenants. The next proceeding by the plaintiff was an application under Section 95, Act 2 of 1901, to have the defendant declared as his tenant. That matter came before this Court in second appeal and it was held that as the relation of landlord and tenant had not previously existed between the parties, the plaintiff could not succeed under Section 95, although he might make an application for fixation of rent under Section 34. In accordance with that order, the plaintiff has now proceeded under Section 34.
4. We consider, however, that as the land has been held to have been cultivated, by the defendant from 1905 continuously up to the date of the present suit in 1924, and as the defendant has never had any relation of landlord and tenant with the plaintiff and as the defendant asserted his proprietary right in the proceeding of 1905, the defendant therefore cannot be assessed to rent under Section 34, Act 2 of 1901. Where a person enters into occupation of land without the consent of the proprietor and with an assertion of proprietary rights and 12 years have elapsed, that person acquires ownership by prescription and the former proprietor cannot have rent assessed on that person, either under Section 34 or under Section 156, Act 2 of 1901. If, however, the period of occupation in the assertion of proprietary rights were less than 12 years, then the zamindar could sue under Section 34, Act 2 of 1901, for the determination and recovery of rent.
5. Accordingly we allow these two Letters Patent appeals and we restore the decree of the Court of first instance and dismiss the suit of the plaintiffs with costs in all Courts.