M. Wahajuddin, J. - (1.) :-
(2.) THE plaintiff brought a suit for declaration that he is the tenant of the plots in suit and in possession and defendant no. 1 has no concern with the suit land. THEre is an alternative prayer that if found out of possession, possession be also given to the plaintiff, it is not in dispute that one Naseeb Kahar was the tenant of the plots involved and Neuri, defendant No. 1, was his wife. It is also established that Mulka was the mother of Naseeb. THE plaintiff's basic stand as per his case in the lower court is that Smt. Neuri remarried one person at Chauri and Smt. Mulka remained in possession of the disputed plots and she transferred her interest in favour of the plaintiff by virtue of a gift-deed. Smt. Neuri, contesting defendant no. 1, denied all the aforesaid allegations and maintained that actually Mulka died before her alleged Sagai with another man and Neuri had continued living in the village till her such Sagai and has continued in possession all through even up til now, after Naseeb's death. The trial court held that the plaintiff failed to establish that he has acquired any tenancy rights and plaintiff's possession for the relevant period is also not proved. It, therefore, dismissed the suit. The first appellate court upheld the findings of the trial court and the appeal was dismissed. The plaintiff has perferred this second appeal assailing the findings and correctness of the judgment of the two courts below.
(3.) TO have a clear approach I may mention that the plaintiff does not claim to have obtained any lease of the holdings. As regards plaintiff's case of gift-deed from Mulka, it is noteworthy that the gift-deed in writing of Mulka in plaintiff's favour, which was filed, was confined to the house and there is no mention of any tenancy holdings. The stand taken is that the plaintiff has by virtue of his continuous possession acquired hereditary rights in the holding. Sections 18 and 159 of the Benaras State Tenancy Act, by which the parties are governed, are relevant. Section 18 lays down different categories of hereditary tenants. Clause (a) provides that the individual concerned was a tenant of the land on the date of the commencement of the Act and not covered under the exceptions. The plaintiff appellant was not a tenant of the suit plots at the commencement of this Act, nor it is urged. Clause (b) provides for those who are admitted as tenant after the commencement of the Act. The plaintiff does not claim that he was so admitted as a tenant by this person in law authorised to admit him as a tenant. Clause (c) provides for those who in accordance with the provisions of this Act acquired hereditary rights. In Section 159 (2) a provision has been made for those who remain in possession and are not ejected within the prescribed period of limitation. It is not in dispute that such limitation period is three years. The courts below have made a right legal approach to scrutinise whether the plaintiff has been in continuous possession for three years as to become hereditary tenant under the aforesaid provision and have recorded a finding against the plaintiff. It is urged that the finding of fact of the two courts below is vitiated, because they did not take into consideration the Khasra of 1364F, in which the plaintiff was recorded as in possession, and further because an admission of Neuri in a previous statement that in the year in which she made that statement Ram Nihore plaintiff had sown certain crops and also one earlier sale-deed executed by Neuri in 1955 (Ext,A-21) were not considered by the lower court. The statement in question is paper No. 53-C and the Khasra for 1364P recording plaintiff's possession were not considered. It would appear that defendant Neuri was not confronted with the admission contained in 53-C and may be for that reason the courts below did not look into it. There are, however, authorities viz. AIR 1937 All. page 1 (FB) followed by the Division Bench In the case reported In AIR 1981 Alld. 376. There Is also another authority AIR 1974 SO 117. The law laid down therein is that If there is a clear and unambiguous admission of any party to the proceedings, then it will be read in evidence as substantive evidence under admission Chapter contained in the Indian Evidence Act, namely, Sections 17 to 21 of that Act. In paper No. 53-0 the only clear and express admission is that in the particular year Ram Nihore had sown certain crops. Firstly, this admission is confined to only one particular year, secondly, it has to be read In context of the whole statement. Neuri stated that Ram Nihore by relationship is her 'Dewar'. Nothing was elicited in that statement whether Ram Nihore had sown the crops in the particular year on his own behalf or for Neuri. Apart from that, admission concerning only one year would not create hereditary tenancy. Continuous possession is to be shown.;