JUDGMENT Iqbal Ahmad, J.
1. This is a plaintiffs appeal and arises out of a suit for possession over a portion of abadi plot 24 and for recovery of Rs. 60 as the price of two nib trees alleged to have been wrongfully cut by the defendants.
2. Originally twelve persons were arrayed as defendants to the suit but nine of those defendants did not claim any interest in the plot in dispute and were exempted. The contest was between the plaintiff and defendants 10 to 12.
3. The house of the contesting defendants is situate on abadi plot 18, which is to the west of plot 24. Both plots 18 and 24 adjoin each other.
4. As regards the nib trees the trial Court held that only one tree was cut and that the tree that was out was standing on the west of No. 24 and belonged to Hans Ram, defendant. The trial Court on this finding dismissed the claim for recovery of the price of nib trees. The lower appellate Court has agreed with this finding of the trial Court. The only point argued before me with respect to the nib tree is that the finding of the learned Munsif was very indefinite and that, in the absence of a clear finding that the tree cut was on plot 18, plaintiff's claim with respect to the same should not have been dismissed. I am unable to agree with this contention. The finding that the tree belonged to Hansram and was towards the west of plot 24 amounts to a finding that the tree was on plot 18 and therefore the plaintiff had no title to the same.
5. Now I proceed to consider the claim as regards possession of a portion of plot 24. That plot has been described in this litigation as a khandhal (house in ruins). According to one of the defendants' witnesses the khandhal was owned by a person named Dammar, who died about forty years ago. The plaintiff's case was that he, as zamindar, was entitled to possession of that plot and that the defendants had taken unlawful possession of the same. The contesting defendants, on the other hand, alleged that they were in possession of the plot as a ryot for more than twelve years. The learned Munsif held that the defendants had been "in possession for 20 or 25 years at least" and being of opinion that the plaintiff was not entitled to sue for possession after the lapse of 12 years from the date of commencement of the defendants' possession, dismissed the claim.
6. The lower appellate Court has affirmed the finding of the trial Court as to the duration of the defendants' possession over the plot and has upheld the decree of that Court.
7. In appeal before me it is argued by the learned Counsel for the appellant that the defendants, by remaining in possession of a parti plot of land for more than 12 years, could not prescribe a title against the zamindar, nor could the nature of that possession be deemed to be adverse in law. On the other hand it is argued on behalf of the respondents that the peaceful possession of the defendants extending for a period of more than 12 years entitles them to have that possession protected and the plaintiff zamindar is not entitled to dispossess them.
8. In my judgment there is considerable force in the contention of the learned Counsel for the appellant. The answer to the question whether or not possession was adverse, must necessarily depend on the nature of the property and the relative positions of the real owner and of the person in possession. The possession by a ryot of a parti plot of land belonging to the zamindar is not necessarily adverse. So long as the zamindar is not in need of putting the parti land to some use, it does not matter to him if that plot is put to temporary use by his ryots. The use of parti plots of land by the ryots in villages is common in this country and does not usually arrest the attention of the zamindar, but such possession is insufficient to give a title to the tenant by adverse possession. Such possession, far from being adverse, must be deemed to be permissive. The view that I take is in consonance with the view taken in the case of Framji Cursetji v. Gocul Das Madhowji [1892] 16 Bom. 338, Chockalinga Naicken v. Muthusami Naicken [1898] 21 Mad. 53 and Bechu v. Lachmi Kuar [1910] 8 I.C. 708. In the last mentioned case it was held that the structures of a purely temporary nature that had been made by a tenant for the convenient use of his house do not constitute such an assertion of right on the part of the tenant as would justify the conclusion that he intended to, and did in fact, set up an adverse claim to the ownership of the soil and, therefore, can be no evidence of adverse possession.
9. On the authority of cases noted above I hold that possession of a tenant or a ryot over a parti plot of land cannot ordinarily be held to be adverse. But there are cases of possession of abadi plots by a tenant to which this rule has no application. For instance if an open plot of land, which is close to a tenant's house has been used by him for his domestic or agricultural purposes for such length of time as to warrant a "presumption that his occupation of the plot is a part of his original contract of tenancy"; the zamindar is not to disturb his possession during the subsistence of the contract of tenancy: vide B. Bhagwan Rai v. Jaddu Rai A.I.R. 1926 All. 66.
10. In the present case the necessary facts have not been ascertained by either of the Courts below and, therefore, I am unable to decide whether the case comes within the purview of the case of B. Bhagwan Rai v. Jaddu Rai, or is governed by the principle of law enunciated in the first three cases noted above, If facts are proved which justify the presumption that plot 21 had been in occupation of the contesting defendants as part of their original contract of tenancy, then the plaintiff will not be entitled to a decree for possession. On the other hand, if proved facts do not warrant such a presumption, then the mere fact of the defendants' possession over plot 24 for a period of more than 12 years would be no justification to deny to the plaintiff zamindar a decree for possession.
11. In the view that I take, I cannot decide this appeal without having a finding from the lower appellate Court on the following point:
12. Has the plot in dispute been in occupation of the defendants for such length of time as to raise the presumption that, as part of their original contract of tenancy, they were allowed to use the plot for their domestic or agricultural purposes?
13. Parties will be allowed to adduce additional evidence. The findings must be submitted to this Court within three months from to-day's date. On receipt of the findings ten days will be allowed for filing objections.