GAFOOR Vs. ABDUL RASHID

JUDGEMENT

(1.) V. K. Mehrotra, J. This is a defendant's second appeal assailing a decree passed by the lower appellate Court restraining them from interfering in any manner with the possession of the plaintiff-respondent over the land in suit which is in the form of a chabutara, the suit had been dismissed by the trial Court. The appellants were defendants Nos. 1, 4 and 6 in the suit. During the pendency of the present appeal, two of them, namely, defendant-appellants Gafoor and Haji Nanak had died but no steps were taken to bring their heirs and legal representatives on the record of this case. The plaintiff's case was that the land in suit was his property with which the defendants had no concern. The plaintiff claimed that the land had been settled with him as 'parjautidar' on payment of Rs. /8/- per year as 'parjauti'. The land in suit, according to the plaintiff, was in the shape of an enclosure adjoining his residential house and was appurtenant to it. From a very long time it was being used as sahan and Court-yard by him and his family members. The main door of the house opened into it and there were several windows of his house which also opened towards it. He claimed that the suit land would be deemed to have been settled with him under Section 9 of U. P. Act No. 1 of 1951 as well. The defendants, according to the allegation of the plaintiff, were trying to interfere with his possession over the suit land and attempting to use it for placing Tazia and Gumbad of Tazia without any right or justification. The present appellants filed a common written statement. Amongst others, they denied the claim of the plaintiff to the ownership of the land as well as his possession over it. They pleaded that the chabutra which stood on the suit land had been got constructed by the Mohammadans of the locality and was being used for considerable length of time for placing Tazia and gumbad thereof during Moharram. They resisted the plaintiff's claim for the relief of injunction. The trial Court framed a number of issues arising from the pleadings of the parties. They were as follows : 1. Whether the land ka, kha, ga, gha, in suit shown in the Amin's map, paper No. 34c belongs to the plaintiff and he is in possession of it ?

(2.) WHETHER the land in suit is panchayati chabutra and is used for purposes mentioned in para 18 of the W. S. ?

(3.) RELIEF ? In respect of issues nos. 1 and 2, the findings" recorded by the trial Court were that the plaintiff was neither the owner of the suit land nor in possession thereof. It took the view that the plaintiff had failed to establish that there was any settlement of the land in his favour by the owner, namely, Raja Birla or any one having authority to do so, on his behalf. The various documents produced on behalf of the plaintiff, including receipts pertaining to the year 1945 (Exts. 10 and 11) did not, according to the trial Court, establish any settlement of the suit land with the plaintiff in accordance with law. The trial court also took the view that the plaintiff had failed to establish that the land in suit was being used by him as a Courtyard or sahan as claimed. The plain tiff was, therefore, held not to be entitled to the benefit of Section 9ofu. P. Act 1 of 1951. The trial Court then found on its appreciation of evidence on record that the suit land was being used by the defendants and other muslims of the locality for placing Tazia etc, as claimed by them. On these findings it dismissed the suit. The plaintiff then appealed. The lower appellate Court posed the only question for determination in the appeal to be "whether the land in suit is land appurtenant to the house of the appellant and has been in his use as sahan thereto or is panchayati land connected with the purposes of taziadari as disclosed in paragraph 18 of the written statement (of the contesting defendants)". The evidence on record was considered by the lower appellate Court. The finding recorded by the trial Court that the defendants had succeeded in establishing that the land in suit was being used for purposes of taziadari reversed by the lower appellate Court which took the view that the plaintiff had succeeded in establishing that the land in suit had been settled with him by its owner through his Karinda Bhagwati Prasad and further that the land was appurtenant to the plaintiff's house and as such would be deemed to be settled with him under Section 9 of U. P. Act 1 of 1951. On these findings, it granted relief in favour of the plaintiff. Sri Sankatha Rai, learned counsel for the appellants, has contended that the lower appellate Court has committed an error in granting the relief and the findings recorded by it both on the question of the settlement of the land in suit with the plaintiff by the owner thereof as well as, its settlement with him under Section 9 of U. P. Act 1 of 1951 were unsustainable. He has also urged that in view of this submission, the plaintiff cannot be held entitled to the decree granted by the lower appellate Court, inasmuch as, the said Court had not recorded a finding that the plaintiff was in possession over the suit lands. The argument further is that the lower appellate court has completely disregar ded documentary evidence on the basis whereof the findings had been recor ded by the trial Court and has acted upon evidence in support of the plaintiff's case which was not admissible in law. The learned counsel for the Plaintiff-respondent at the outset, urged that inasmuch as no steps were taken by the appellants to substitute the heirs and legal representatives of deceased appellants Nos. 1 and 2 within the time allo wed by law, the whole appeal deserves dismissal for the absence of the heirs of the said two appellants would result in inconsistent decree being passed by this Court. The argument has, however, been countered by Sri Sankatha Rai by urging that the rights that the appellants claimed in the suit were not perso nal to them and as such the absence of the heirs of deceased appellants Nos. 1 and 2 would not have the effect as contended for by the learned counsel for the plaintiff-respondent. A perusal of the written statement filed by the present appellants shows that they claimed that the land in suit, amongst others, was being used by the Mohammadans of the locality and the neighborhood on the occasion of Moharram for purposes of taziadari from time immemorial. The defendants also claimed a similar user, as of right, of the land. No personal rights in the land in suit were claimed by the contesting defendants who asserted that the plaintiff had no right to exclude the user of the land in suit by the Mohammadans including themselves. The nature of the claim made by the appellants makes it clear that the plaintiff's right to sue would not be adversely affected by the absence of some of the defendants from the array of the parties. The circum stance that no personal right had been claimed in the land in suit by the deceased contesting defendants makes it abundantly clear that the absence of their legal representatives from the array of the appellants would hardly affect the decree as against the surviving defendant. Who is appellant No. 3. The question of inconsistent decree coming into existence does not arise in this appeal, such of the defendants who still survives would be bound by the decree passed by the Court if it eventually chooses to uphold the decree of the lower appellate court. It is not possible to accept the contention of the learned counsel for the plaintiff-respondent that the appeal as a whole abates and can not be heard on merit. The plaintiff in a suit like the one giving rise to the present appeal can succeed on proof of his title or of lawful possession over the suit land. The lower appellate Court, as noticed above, formulated the sole point for determi nation as being the one founded upon Section 9 of U. P. Act 1 of 1951. In Maharaj Singh v. State of U. P. and others ( (1977) R. D. 7 S. C) the Supreme Court had occasion to deal with the question as to the connotation of the word 'appurte nant' as used in Section 9 of U. P. Act 1 of 1951. Krishna lyer, J. speaking for the court observed as follows : "appurtenance', in relation to a dwelling, or to a school, college. . . . . . . . . includes all land occupied therewith and used for the purposes thereof (Words and Phrases legally defined-Butterworth's, 2nd edn.)". The word 'appurtenance' has a distinct and definite meaning prima facie it imports nothing more than what h strictly appertaining to the subject matter of the devise or grant, and which would, in truth, pass without being specially mentioned. Ordinarily, what is necessary for the enjoy ment and has been used for the purpose of the building, such as ease ments, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression 'appurte nant'. If some other purpose was being fulfilled by the building and the lands, it is not possible to contend that those lands are covered by the expression 'appurtenances'. Indeed it is settled by the earliest authority, repeated without contradiction to the latest, that land cannot be appurte nant' to land. The word 'appurtenances' includes all the incorporeal here ditaments attached to the land granted or demised, such as rights of way, of common. . . . . but it does not include lands in addition to that granted. (Words and Phrases, supra ). In short, the touchstone of 'appurtenance' is dependence of the buil ding on what appertains to it for its use as a building. Obviously, the Hat, Bazar or Mela is not an appurtenance to the building. The law thus leads to the clear conclusion that even if the buildings were used and enjoyed in the past with the whole stretch of vacant space for a Hat or Mela, the land is not appurtenant to the principal subject granted by Section 9, viz. , buildings. " On the test laid down in the aforesaid decision it is clear that before a person is entitled to claim settlement of land under Section 9 of U. P. Act 1 of 1951 it must be found that the land was necessary for the enjoyment of the building of which it was claimed to be appurtenant. In the instant case, the lower appellate Court has examined the evidence on record and, after making an inspection of the site in dispute on the prater made by the parties, concluded that the plaintiff had been able to make out a case under Section 9 of U. P. Act 1 of 1951. The lower appellate Court observed thus : "the land falls just in front of the main door of the appellant. The contention of the respondents is that the appellant was allowed only recently to open his door and windows towards the land in suit. . . . . . It is very much clear from the testimony of the respondent Abdul Gafoor that the door of the appellant towards the land in suit has been in existence for more than 20 years. In this connection it is notable that the level of the door and the level of the land in suit which is in the shape of raised platform is on equal height. . . . . . " "it is not disputed that the Imambara in which the Tazia is kept on the 10th day of Moharram after Fatman lies just in front of the chabutra in suit with only a narrow passage in between. The constructed portion of the Imambara in which the tazia is kept is in the back and towards south of it and there are two kotharies which are admittedly part of the Imambara. After the kotharies there is one chabutra in the shape of an open land which also is admit tedly the part of the Imambara. It is this chabutra of the Imambara which faces the chabutra in suit with the rasta in between. According to the appellant actually this chabutra of the Imambara is the place where Gumbad is kept on the tazia after it is shifted again to the Imam k nearby. The contention of the appellant appears to be quite reasonable and probable. It do.-s not appeal to reason that leaving this chabutra of the Imambara useless the respondents and other Muslims would have elected to use the frontage of the appellant as the place to put the gumbad over the tazia. Respondents have not been able to explain anything as to how this chabutra of the Imambara is utilised. This fact coupled with the fact that from every point of view, such as situation, location, extent and direction the chabutra in suit appears to be a land appurte nant to the house of the appellant totally defeats the contention of the respondents. " Towards the concluding portion of his judgment, the lower appellate Court said that in the present case the situation, extent location and direction of the chabutra in suit is such that by no stretch of imagination it can be taken that this should have been the place from time immemorial where Muslims of the locality have been exercising their customary right of placing gumbad over the tazia. . . . . . From the discussion above, it comes out very clearly that the land in suit has throughout been the land appurtenant to land of the appellant and has not been a land used for any purpose connected with the taziadari as has been alleged by the respondents. ' The aforesaid observations have been utilised by the learned counsel for the plaintiff-respondent to urge that the finding of the lower appellate Court is that the land in suit has been held to be necessary for the enjoyment of the house of the plaintiff. The argument of the learned counsel is that the findings so recorded is consistent with the law laid down by the Supreme Court and that the plaintiff had succeeded in establishing his claim under Section 9 of U. P. Act 1 of 1951. The submission, on the other hand, of the learned coun sel for the appellants is that the aforesaid finding falls short of the requirement of a claim being successfully upheld under Section 9 ofu. P. Act 1 of 1951 as laid down by the Supreme Court The argument further is that the trial court recorded a categorical finding that the plaintiff was not in possession of the suit land and could not, consequently, claim to the benefit of Section 9 of U. P. Act 1 of 1951. The learned counsel further urged that there was a clear finding that the land was being used by the defendant-appellants as claimed by them. The finding that the defendant-appellants and other muslims of the loca lity were using the suit land for purpose of taziadari during Moharram has been expressly reversed by the lower appellate court. The lower appellate court, it is not disputed, could arrive at its own conclusion on appreciation of the material on record. The finding, as noticed, recorded by the lower appel late court is that the defendant appellants have failed to establish that the land in suit was being used by the muslims including themselves for purposes of taziadari during Moharram. A perusal of the decision of the Supreme Court in Maharaj Singh's case (supra) would show that the benefit of Section 9 of U. P. Act 1 of 1951 is not dependent upon the fact of actual possession of a piece of land over which such a claim is made under the provision. The absence of a categorical finding of possession of the plaintiff over the suit land would, therefore, not bs very material. The lower appellate Court has taken into consideration the circumstances, including the location of the suit land, and come to the conclusion that it was appurtenant to the plaintiff's house. The clear effect of the finding recorded by the lower appellate Court is that the suit land was considered by it to b; necessary for the enjoyment of the plaintiff's house which, admittedly, was contiguous to it and towards which existed its only door and opened its windows. The finding so recorded entitles the plain tiff to the decree, as granted by the lower appellate Court, that there should be no interference in his user of the suit land by the defendants. It is difficult to accept the submission made on behalf of the appellants that the lower appellate Court erred in granting the decree that it did. On the conclusion that the plaintiff-respondent was entitled to the decree granted in his favour by the lower appellate Court on its view that the plaintiff was' entitled to claim rights under Section 9 of U. P. Act 1 of 1951 in respect of the suit land, it is unnecessary to consider the question whether the plaintiff had succeeded in establishing that the land in suit had been settled with him by its erstwhile owner or not. The consequence of the aforesaid discussion is that the present appeal has to be dismissed as lacking in merit. The decree passed by the lower appellate Court is affirmed. The plaintiff-respondent will be entitled to his costs. .