JUDGMENT Darling, S.M. 1. (July 27, 1937)--The pedigree of the Defendant's family is as follows: At the settlement of 1833 A. D. there were four holdings in the name of Jai Sukh Rai: the composition of those four holdings is not known. At the settlement of 1863 Shankar Lal was recorded as a tenant of a Qadim maurusi khata, which includes two plots with numbers corresponding to the two plots now in suit, Nos. 1761-A and 2315, area 3 big has 18 biswas situated in village Sambhelhera of the pargana of that name in the Muzaffarnagar district. No records are available for the years between 1833 and 1863: there is nothing to show in what year Jai Sukh Rai died: but, because there is no mention of Hargu Lal in any available khatanni, the Commissioner assumes that Hargu Lal predeceased his father Jai Sukh Rai: in the absence of all evidence this presumption is not warranted. Shankar Lal was still the tenant of this holding at the settlement of 1295 F: it is then shown as an occupancy holding. At the settlement of 1325 F. Shankar Lal had been succeeded by his nephew Jwala Prasad, who in the khatauni of 1326 F. of another mahal of the same village is described as his adopted son. In the year 1343 F. Jwala Prasad died: the Plaintiff zamindar claims that the occupancy rights have lapsed: the zamindar therefore sues unctet Section 44 of the Tenancy Act for the ejectment of Genda Mal, who claims these two plots in full occupancy rights. By a carefully considered order dated the 27th April, 1936, the Assistant Collector has decreed the suit: but in appeal the Commissioner of Meerut, by his order dated the 22nd July, 1936, has reversed this decision: the Commissioner has recognised the claim of the Defendant Genda Mal to the occupancy rights of the holding: the Commissioner has therefore dismissed the suit. The Plaintiff zamindar comes to the Board in second appeal. 2. The Commissioner's judgment is vitiated by a series of assumptions, which cannot be accepted: reference has already been made to one. The Plaintiff zamindar comes to the Board in second appeal. 2. The Commissioner's judgment is vitiated by a series of assumptions, which cannot be accepted: reference has already been made to one. The biggest assumption of all is that the two plots now in suit were included in one of the four khatas which were recorded as qadim holdings of Jai Sukh Rai at the settlement of 1833 there is no evidence whatsoever to establish this assumption: at the best it is merely an inference. 3. In cross-examination the Defendant Genda Mai states that at the settlement of 1325 F. he applied before the Settlement Officer to be recorded as a co-tenant with Jwala Prasad in this occupancy holding, but proceeds to admit that the application was rejected. of the three sons of Hargu Lal only one Shankar Lal was recorded at the settlements of 1863 A. E. and 1295 F. In view of the Defendant's admission that his claim to be a co-tenant with Jwala Prasad at the last settlement of 1325 F. was rejected, it is quite impossible to recognise Genda Hal as having been a co-tenant of this holding along with Jwala Prasad. No: can: he claim to have shared in the cultivation, seeing that both the plots were sub-let when Jwala Prasad died and had been so sub-let since 1330 F. 4. The Defendant Genda Mal is liable to ejectment as a trespasser. I would allow this appeal I would set aside the order of the Commissioner, and restore that of the Assistant Collector decreeing the suit with costs throughout including Rs. 10 for pleader's fees in this Court: the damages of Rs. 6-12-0 awarded by the Assistant Collector are confirmed. Bomford J. M.-(july 30, 1937). I agree.