AQLIMA BIBI Vs. SHIV SHANKER

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal in a suit for demolition of certain constructions and for an injunction restraining the defendants from raising any construction, on the land in suit, and for possession thereon. 2. The land is situate within the municipal limits of the town of Maunath Bhanjam in the district of Azamgarh. The plaintiffs are the Zamindars of village Sarahu to which the land appertains and are in that sense the owners of the land. Although there was some dispute, the land in suit has been found to form part of plot No. 296, and has an area of 310 Karis. There are three sets of defendants, namely the first set comprising of defendants Nos. 1 to 4, second set comprising of defendant No. 5 and the third set of defendants Nos. 6 and 7. The portions of the land with which each of the three sets of the defendants are concerned, are different and the immediate cause of action pleaded against them is also not the same. The plea of multi-fariousness, that was raised by issue No. 3, not having been pressed in the trial court, nothing more need be said about it. 3. Originally, one Smt. Mahmooda Bibi was the first defendant, Smt. Samrajia the second defendant and Chander Ram the sixth defendant-respondent was the third defendant in the suit. The plaint was amended more than once and according to the plaintiffs' case, as finally set out after the amendments of the plaint. Atwaroo, the first defendant, Ram Chander and Harihar had in league with each other and wrongfully, on their own, constructed a house and a Madhai on the western part of the land in dispute some nine years ago without the knowledge and permission of the plaintiff. Harihar had died. Samrajia was his heir. She had also died and Kishun Dei defendant No. 5 was her heir. Defendants Nos. 8 to 12 claimed to be the transferees from Samarajia, and all the defendants together were interfering with the plaintiffs' possession and wrongfully claimed title to the constructions and refused to demolish or remove them. Defendants Nos. 2 and 3 are the brothers of Atwaroo and defendant No. 4 is their mother. Defendant No. 7 is the wife of defendant No. 6. Defendants Nos. 7 to 11 are the sons of defendant No. 12, of whom defendants Nos. 10 and 11 were minors, when they were impleaded as defendants in the suit. According to the plaintiffs' story, as set out in the plaint, the land was Parti and situate quite at a distance from the plaintiff's residence. The plaintiffs happened to pass that way once and saw the defendants building upon the land, which had gone up to quite a substantial stage. On the plaintiffs objection, the defendants requested them not to file a suit and that they would come and settle the matter, but the matter was postponed and the defendants had not removed the constructions, hence the suit. It was then alleged that the land on which the defendants Nos. 1 to 4 had constructed their house, had illegally been given by them to Mahmooda Bibi, who was originally the first defendant, but whose name was deleted by amendment and they represented themselves to be the owners of the land, and the house of the defendants Nos. 1 to 4 was no longer there, but Mahmooda Bibi was in unlawful possession of the land claiming herself to be the owner, and the plaintiffs will take proper steps against her by a separate suit, if necessary, but the present suit was confined to the land only or the site of the house. It was then alleged that the fifth defendant had wrongfully sold the land to the defendant No. 12, on which construction had been started by the defendants Nos. 8 to 12, who had no right to raise the constructions. Chander Ram-defendant No. 6 appeared to be a misnomer for Ram Chandra, whose name was mentioned in the plaintiffs' case at the outset, and defendant No. 7 is his wife. The cause of action for the suit was said to have arisen in December, 1960, when the construction were raised and in November, 1963, the defendants made the last denial. 4. The substantial plea raised in defence was that the residential houses were in existence over the land in suit for more than 40 years and having fallen down in the floods of 1955, they were made afresh and that the owners of the houses had a right to transfer them. Limitation was also pleaded as a bar to the suit apart from other technical pleas. The first issue raised by the trial court was, whether the plaintiffs are owners of the site of the constructions in dispute, and the second issue was whether the suit is barred by limitation. The first issue so raised did not bring out the essential controversy between the parties, for the real question was, whether the plaintiffs could as Zamindars of the village or owners of the land, eject the defendants and in the process to have the constructions raised by the original owners of the houses or their transferees, demolished and removed. 5. Be that as it may, the trial court took up the issues Nos. 1 and 2 together for consideration. It found that the land in suit stood in plot No. 296. The northern most construction was of Mahmooda Bibi and the southern most one was in the nature of Chhappar and Gumtis raised by defendants Nos. 6 and 7, and between the two lay the Ahata constructed by the defendant No. 12. The land was lying parti and the plaintiffs did not make any direct use of the same. It appertained to Mohal Sanaullah and the plaintiffs were co-sharers therein. They were thus the proprietors of the land in suit. According to the trial court it was borne out from the own evidence of the plaintiffs that constructions raised by Atwari, Chander and Harihar on the land, were in existence before the floods of 1955 and that after the floods, the constructions were rebuilt The trial court concluded that Atwari, Smt. Samrajia (widow of Harihar), and Chander and Lachchhuee (defendants Nos. 6 and 7) had their old houses situate on the land in suit from much before 1955, as pleaded by the defendants; that Samrajia was the owner in possession of the house and was competent to transfer her interest in favour of defendant No. 12, who had admittedly raised a new Ahata on the site of Samrajia and is thus the owner in possession thereof including the site. The trial court also gave credence to the defence suggestion that Mahmooda Bibi had got the suit filed against Atwaroo, defendant No. 1, as a suit by him for possession had been decreed against her, although her appeal from that decree had been allowed, vide-Ext. 15, which is the judgment dated 12th March, 1965, of the Addl. Civil Judge, Azamgarh, in Civil Appeal No. 286 of 1963 between Mahmooda Bibi defendant-appellant and Atwaroo and others.- plaintiffs-respondents, arising from suit No. 532 of 1960. I may here observe that the decree of the trial court in Suit No. 532 of 1960 was dated 12th March, 1963 and the suit giving rise to the present second appeal was filed on l6th December, 1963. The application for amendment of the plaint, by which the name of Mahmooda Bibi was sought to be deleted and in her place the defendants Nos. 1 to 4 were sought to be impleaded, is dated 30th March, 1964, vide paper No. 41-42. That application was allowed by order dated 11th May, 1964. All this happened before the appeal of Mahmooda Bibi was allowed by the said judgment dated 12th March, 1965 Ext. 15 R. I may incidentally also observe that that appeal was allowed on the ground that the suit was undervalued and on its true valuation, it was beyond the pecuniary jurisdiction of the Munsiff. 6. The Trial court concluded by holding that the plaintiffs' right, and title to the land in suit, i. e. , the site of constructions in dispute had extinguished long before the date of the institution of the suit and that they had thus ceased to he owners of the site of the constructions, and the suit was barred by limitation. 7. On appeal by the plaintiffs, the same two issues with regard to the ownership of the site of the constructions and limitation were raised for determination. On the question of ownership, the lower appellate court held that the constructions in dispute lay on plot No. 296, which belonged to the plaintiffs, as its Zamindars, but on the question of limitation it held that the plaintiffs had been out of possession for more than 12 years and the suit was thus barred by limitation. Having held that the suit was barred by limitation, the lower appellate court proceeded to make certain observations. In its view the suit against defendants Nos. 1 to 4 was 'quite infructuous' inasmuch as they were not in possession and it was Mahmooda Bibi, who was in possession and had built a house thereon, but had not been impleaded as a defendant in that suit. Lastly, the lower appellate court observed, 'though now not necessary'', it was argued before it that the defendants had become owners by adverse possession. The finding of the lower appellate court on this point was that the constructions raised over the land in suit, were of a permanent nature and that by having made such construction, the defendants had matured title to the land in suit by adverse possession. 8. Having heard the learned counsel for the parties, I find that although the basis on which the two courts below proceeded to non-suit the plaintiffs, was not correct, the suit was yet bound to fail and was rightly dismissed. 9. The land could have been said to be a part of the Abadi of an agricultural village, but the fact remains that for quite sometime past and at any rate since before the abolition of Zamindari in Uttar Pradesh, it has been situate within the municipal limits of the town of Mau-nath Bhanjan. If it had not been so situate, the rights of the parties would have been determinable under S. 9 of the U. P. Zamindari Abolition and Land Reforms Act. However, since it was not so situate, it could not be said to have been situate in the Abadi of an agricultural village. The argument raised by Dr. Gyan Prakash for the plaintiff- appellants was that the possession of the defendants was that of licensees. Dr. Gyan Prakash contended that the constructions raised by the defendants' first set and second set had admittedly fallen down in 1955 and it was indisputable that none of the constructions standing on the land at present belonged to either of them. The constructions of the defendants' third set, namely defendants Nos. 6 and 7 were of a temporary nature, being only Chhappars without any permanency about them. According to Dr. Gyan Prakash, the licences of the defendants' first set and second set stood revoked, when they parted with the possession of the land, in the case of the defendants first set to Mahmooda Bibi and in the case of defendants' second set in favour of defendants Nos. 8 to 12. Mahmooda Bibi and defendants Nos. 8 to 12 could not resist eviction and recovery of possession over the land by the plaintiffs in exercise of their paramount title as the owners against the defendants' first set and second set. 10. Dr. Gyan Prakash further contended that even if it were to be assumed that the licence of the defendants' first set and second set had become irrevocable on account of the nature of the constructions raised by them originally and even if they had a right to raise new constructions in place of the old ones, that had fallen down in floods in 1955, the licence could not be said to be transferable, and the act of transfer of the land by them forfeited their licence and the plaintiffs were entitled to enter into possession against them and their transferees. The terms of 'fasal Chaharum' of the Wajib-ul-arz of village Sarahu of Pargana Mau-nath Bhanjan. district Azamgarh from the settlement record of 1874 A. D. , and S. 56 of the Indian Easements Act, 1882, were relied upon by Dr. Gyan Prakash in this context. The relevant portion of the terms of the Waiib-ul-wz reads as follows:- Section 56 of the Indian Easements Act is in the following terms:- "licence when transferable:- Unless a different intention is expressed or necessarily implied, a licence to attend a place of public entertainment may be transferred by the licensee, but, save as aforesaid, a licence cannot be transferred by the licensee or exercised by his servants or agents. Illustrations (a) A grants B a right to walk over A's field whenever he pleases. Tha right is not annexed to any immoveable property of B. The right cannot be transferred. (b) The Government grants B a licence to erect and use temporary grain-sheds on Government land. In the absence of express provision to to contrary. B's servants may enter on the land for the purpose of erecting sheds errect the same, deposit grain therein and remove grain therefrom. " Mr. Sharad Malviya appearing for the defendant-respondents Nos. 3 to 12 however, cited the cases of Narsingh Das v. Safiullah, AIR 1954 All 773 and Ram Bharose v. Bishnath Prasad, AIR 1934 All 336. A Division Bench of this Court laid down, in Ram Bharose's case (AIR 1934 All 336, (supra) at p. 337, column 2) that in cases of houses built in cities on land belonging to the Zamindar, there can be no presumption that the tenant or licensee has no power of transfer and if the Zamindar contends that the tenant has no right to transfer the building, which he had built, and which he was occupying, it is for him, i. e. , the Zamindar to show that under the terms of the licence, the right of the tenant was limited and it was expressly agreed that he would be incompetent to make a transfer and it was open to him to prove the existence of a custom prohibiting the right of transfer. With regard to the houses built by tenants of villages the Division Bench observed that the position was different inasmuch as a tenant building a house on a village site has only a right to occupy it so long the tenancy lasts or so long he does not abandon the village. 11. The same rule was reiterated in Nar Singh Das's case (supra) and it was further observed (AIR 1954 All 773, at p. 777) that the general practice prevailing in this State as to the rights of the licensees to transfer their houses in cities is so well know that the courts of law have consistently recognised that a licensee in urban areas will be presumed to have a right of transfer unless under this terms of any particular licence it was specifically provided that the licensee shall have no such right of transfer. 12. Interpreting S. 56 of the Indian Easements Act, 1882, the Bench observed: "the words 'save as aforesaid' are important and they must be read with the opening words of the section unless a different intention expressed or necessarily implied and". So interpreting the section, means that unless a different intention is expressed or necessarily implied a licence other than a licence to attend a place of public entertainment cannot be transferred by the licensee or by his servant or agents. Now a right to transfer is necessarily implied in case of licences granted by Zamindars for building houses on land forming part of their Zamidari in areas other than agricultural villages. 13. Maunath Bhanjan was surely not an agricultural village and has not been so. at any rate, since before the abolition of the Zamindari. The law relating to Abadi sites in agricultural villages has, however, undergone a complete change by reason of the U. P. Village Abadi Act, 1948 and the provisions of S. 9 of the U. P. Zamindari Abolition and Land Reforms Act 14. So far as the terms of the Wajib-ul-arz relied upon by Dr. Gyan Prakash are concerned, it shows that the tenant has the right to sell the 'amla' subject to the payment of Zare Chaharum. Zare Chaharum has open abolished; and in the past whenever a house, the site of which belonged to the Zammdari and not to the house-owner, was transferred, it was the 'amla', which was transferred and not the house with the site. The 'amla' or the standing construction carried with it the right to occupy the site on the terms on which the transferor occupied it and that is why payment of Zare Chaharum was required. Zare Chaharum has, however, been abolished and the term about the previous permission of the Zamindar, as contained in the Wajib-ul-Arz was hardly enforceable. when Zamindari has been abolished and Zare Chaharum is no longer payable. I do not, therefore, think that the aforesaid clause of Wajib-ul-Arz could be invoked to invalidate the transfer in question in the present case. Dr. Gyan Prakash even contended that houses had not been reconstructed within six months of the falling down of the old houses as envisaged in the said term of the Wajib-ul-Arz. There is no merit in this argument. It was never raised. There was no evidence to show that houses were not reconstructed within six months of the falling down of the old houses. At any rate, the term is not mandatory. It only gave the Zamindar, a right to forfeit, which could be lost by waiver or inaction. 15. Dr. Gyan Prakash then attacked the finding of the two courts below that the suit was barred by limitation. Tha suit was based on title and that being so, it could not be barred by time, unless the defendants established that they had been in adverse possession for more-than 12 years before the suit. Dr. Gyan Prakash urged that the possession of licensee can never be adverse. Dr. Gyan Prakash was right in this submission. Even if the defendants built upon the land without the permission or against the wishes of the plaintiffs, they never claimed to be the owners of the land as its proprietors or Zamindars like the plaintiffs. They only claim an unrestricted right of building upon the land or using it for building purposes. Even if they prescribed a right by adverse possession, the right prescribed was not of ownership of the land as proprietor thereof, but the right of a licensee for building purposes, the licence being irrevocable. heritable and transferable. 16. In the result, the appeal fails and is dismissed with costs. Appeal dismissed. .