BUDDHAN SINGH Vs. NABI BUX

JUDGEMENT

(1.) I respectfully differ from the judgments of ray brothers Mukerji find Dwivedi and consider that the appeal should be allowed and the suit bought against the appellants by the respondents should be dismissed. The findings of fact which cannot be challenged in second appeal are that the respondents were the owners of the constructions made on the land possessed by the appellants as their riyayas, that is as licensees, that they never abandoned the village, their rights as licensees and the constructions but continued to be the owners of the constructions and the licensees of the site and that during their absence the appellants unlawfully took possession of the constructions and their site, demolished, the constructions and included the site in their own cattle-shed or constructed a cattle-shed over it. On these findings the suit of the respondent was decreed by the trial court and they were ordered to be restored to possession over the sits of the constructions. There could have been no question of their being restored to possession over the constructions because they did not exist at all, The decree was passed on 19-1-1952 when the U. P. Tenancy Act, was in force. It was appealed from by the appellants, and during its pendency the Zamindari Abolition and Land Reforms Act came into force. The lower appellate court on 17-7-1953 affirmed the decree of the trial court, but without considering the effect of Section 9 of the Zamindari Abolition and Land Reforms Act on the rights of the parties. The appellants did not base any argument on the provisions of the section before it. They preferred a second appeal and now contended that the cattle-shed should continue to belong to them and that the site should be deemed to be settled with them by the State Government. The position on 1-7-1952 (the date on which the new Act came into force) was that the respondents had a decree in their favour for possession over the site only. Their constructions had already been demolished and there was no question of their holding the decree for possession over them There remained only the site to which they were entitled as licensees, and they held a decree only for restoration of possession over it. There did stand a construction on it, namely the cattle-shed, but that admittedly belonged to the appellants they might have unlawfully trespassed on the site of the constructions belonging to the respondents, unlawfully demolished them and unlawfully constructed a cattle-shed over it, still the respondent did not become owners of the cattle-shed. On account of the decree for possession over the site the cattle-shed might go to them along with the site in the execution of the decree, but it did not mean that they became owners of the cattle-shed. If 'A' trespasses upon the land of 'B' and places his chattels on it, or makes a construction on it at his own expouse, he remains the owner of the chattels or the construction and neither can be said to belong to the owner of the land. The law does not make 'B' owner of the chattels or the construction merely because he is the owner of the land; otherwise the would be entitled to a decree for possession, over the land and for possession over the construction and would not sure simply for possession over the land as he invariably does. Though the suit of the respondents was decreed, it was in appeal, and, since Section 9 of the Zamindari Abolition and Land Reforms Act came into force on 1-7-52, the appellate court was bound to consider its provisions before deciding the appeal. It had not merely to see whether the decree passed by the lower court was Correct or not; it had to deal with the matter as if it were itself trying the suit. When the only constructions that food on the site belonged to, and were in the occupation of, the appellants, only the appellants could continue to own and be in occupation of them; the respondents, who were not the owners and were not even in possession of them, could not possibly be said to continue to own them after. 1-7-52-Section 9 deals with two things; (1) a building, (I am dealing with the section as if it dealt only with a building) and (2) its site, and makes it clear that the site shall be deemed to be settled with that person, who is to continue to own the building. It is impossible under the section for a building to belong to one person and its site to be settled with another, It is obvious that the first question to be decided by a Court is to whom the building is to continue to belong; the question with whom its site should be deemed to be settled will depend upon the answer to it. The words "shall continue to belong" mean, and cannot mean anything else, that whoever was the owner of the building before 1-7-52 will continue to be its owner after that date; the section does not contemplate at all that one person could be the owner before 1-7-52 and another, after that date. One more fact to be noticed is that the words "shall continue" mean that the building itself continues; Section 9 will not apply to a building which ceased to exist before 1-7-52. Thus it cannot be applied to the construction belonging to the respondents; they ceased to exist before 1-7-52 and, therefore, there wan no question of their continuing to own anything, and if there was no question of their owning anything there was no question of any land being settled with them. As regards their own constructions they were not entitled to be deemed to be settled with their site because they did not exist, and, as regards the cattle-shed it did not belong to them, and was certainly not held by them, and hence its site could not be deemed to be settled with them. Thus they did not derive any benefit from Section 9 and their suit should have been dismissed by the appellate court.

(2.) In the view that I take it is unnecessary to decide what exactly is meant by the word "held", Even if the word "held" is used to mean "held under a title" or "held lawfully the respondents could not get the benefit of Section 9, because as explained above, the only building that stood on 1-7-1952 was the cattle-shed belonging to the appellants and in their own physical possession, and, since no building belonging to the respondents stood on that date, no land could be deemed to be settled with them. On 1-7-1952 they lost their rights as licensees (as I shall show presently) and, if they could get a decree over the site of their constructions, it could be only on the footing that the site was deemed to be settled with them; there was no other basis for a decree to be passed in their favour on or after 1-7-52. They could have got a decree for damages in respect of the malba of their constructions or on account of the demolition of their constructions, but that is not the decree sought by them. They could have got a decree for possession over the site only if their constructions had stood on it on 1-7-1952. According to the law it was for them to establish their title to the land; they could not get a decree on the basis of a weakness in the title of the appellants. The law is so well known that it is unnecessary to cite authorities. The appellants might or might net have been entitled to the benefit of the provisions of Section 9, but if the respondents were not entitled to it their suit Was doomed.

(3.) On 1-7-52 all the rights of the intermediaries vested in the State free from all encumbrances, which means that all the rights of persons holding under them, whether as tenants or as licensees, were extinguished. Section 9 was enacted to provide for buildings and their sites. The Legislature decided that the enforcement of the Act should not affect the rights in the buildings; they will continue as before. As regards their sites, the Legislature decided that they should be deemed to be settled with those to whom they belonged, or by whom they were held. If a person trespassing upon a land of an intermediary constructed a building, the building belonged to him and the Legislature decided that he will continue to own it as before; there is sense in this. The Legislature was not going to decide questions of title and had to leave them to be decided by Courts. The abolition of Zamindari had nothing to do with ownership of buildings; the rights of intermediaries in the sites of buildings could cease and be vested in the State without the rights over the buildings being affected. After deciding that the rights over the buildings will continue unaffected, it decided that the licensee rights should go along with them, and this was quite logical. If a person trespassed upon an intermediary's land, when the intermediary lost all his rights he also lost the right to recover possession from the trespasser; he had no right to the building and could not claim that the building should be given to him and its site should be deemed to be settled with him. The only person who could continue to own it and with whom its site could be deemed to be settled was the trespasser. It was not a question of the Slate's favouring a transpasser as against a rightful owner; it had already taken away all the rights of the rightful owner by the vesting and, therefore, he was not to lose by the site not being settled with him.