NAGUA Vs. BRIJRAJ KISHORE

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit for injunction. The plaintiff-respondents owned two houses. The defendant's house is situated to the south of the eastern house of the plaintiffs. The main Sehan of the two houses belonging to the plaintiff is to the south of their western house and to the west of their eastern house. The defendant's house is situate to the further south of the plaintiff's eastern house and the defendant's Sehan lies to the west of his house and to the south of the plaintiffs' Sehan. THIS is the land in suit which is described by the letters Aa Ba Sa Da Ya Ra on the map and is enclosed by red dotted lines. The trial Court found that the land in suit could not be the joint pro perty of the plaintiffs on the one hand and the defendant on the other, and that being the Sehan of defendant's house it must be deemed to be the exclusive property of the defendant. In the result the trial Court dismissed the suit. The lower appellate Court has been rather critical of the judgment of the trial Court. It observed; "The main issue framed in the case was whether the plaintiffs are in joint possession with the defendant over the land in suit but a perusal of the judgment of the learned Munsif shows that under this issue he has mainly considered the question of joint title and co-ownership and has fruitlessly dilated to dwell about the circumstances in which joint ownership or co-ownership may arise. His finding further appears to be influenced by the fact that the plaintiffs have an opening of their house towards the north also and have Sehan land in front of it and that the defendant has the opening of his house towards the land in suit." I have not been able to myself to accept and adopt the reasoning of the learned Civil Judge and the conclusions drawn by him. If a person permits another to open a door towards his own land, I fail to understand how his entire rights in the land would be lost and would become vested in the person who opens the door with his permission. At best it would amount to grant of a licence to use the land for purposes of egress, and ingress and none of his own rights would be affected or curtailed by the grant of the permission except in so far as they render the grant itself nugatory. The reasons given by the lower appellate Court for rejecting the finding of the trial Court proceeded on the assumption that the plaintiff had established their exclusive title to the land in suit. However, on the question of title to the land in suit, the lower appellate Court proceeded to observe immediately thereafter that, "no documentary evidence has been filed by either parties nor any satisfactory oral evidence is forthcoming regarding its origin and evidence is confined to the question of possession." The lower appellate Court then proceeded to notice that "ordinarily in village right in respect of a Sehan land is recognised on the basis of user and possession and it finds statutory recog nition in Section 9 of the U. P. Zanindari Abolition and Land Reforms Act which says that if a piece of land is appurtenant to two adjoining houses and is being used jointly by the occupants of both the house it would be deemed to have been suttled jointly with both of them and they would have joint rights in respect of it." Mr. S. C. Agiawal learned counsel for the appellant urged that the reasoning adopted by the lower appellate Court is erroneous in law. The Zamindari Abolition Act does not provide that if two persons owned two houses or two sites of land and jointly used the land in between their two houses, that land shall be deemed to be jointly settled with them. It is only the site of a house and the land appurtenant thereto which is deemed to be settled by the State with the owner of the house. If the particular house belong to two or more persons the site of the house and the land appurtenant thereto will be deemed to be settled jointly with such two or more persons, but in case there are two houses belonging to two different persons the land in between can be appurtenant to one house or the other or neither it is difficult to conceive of a situation where the land could be said to be appurtenant to both the houses. Moreover the kind of user of land by the plaintiffs on the land in suit is not necessarily such as may lead to the inference that the land in suit or any part or its was appurtenant to their houses. Appurtenance implies something more than mere user of a piece of land by the owner of a house. For instance if the owner or occupier of a house us s some land for ingress in to and egress from the house or as a passage there from, it cannot necessarily mean that the land so used must be appurtenant to the house. The land appurtenant to a house is that which is attached to the house and is used for the more beneficial or convenient enjoy ment of the house. That land may be regarded to be appurtenant to a house, which is attached to the house. A look at the commissioners map. 33 Ga. 2 and the Amin's map, 25 Ga-2 shows that the land in suit is more closely con nected to the defendant's house than to the two houses of the plaintiffs, and in any case since the plaintiff and the defendant separately owned their respective houses, the land in suit could not be deemed to have been jointly settled with them by the State under Section 9 of U. P. Zamindari Abolition and Land Reforms Act. As to the user of the land by the plaintiffs that has been adverted to by the lower appellate Court, it has to be observed that the lower appellate Court has proceeded to base the reasons given by it on the assumption that the land in suit belongs to the plaintiffs. Unless the land in suit was first found to belong to the plaintiffs, there was no question of their having permitted the defendant to use it, whether for building his house or for using it as the Sehan of his house by opening his house westwards. In the ultimate finding recorded by the lower appellate Court it is said that the land in suit is in joint possession and use of the plaintiffs and the defendant. The trial Court had adverted to that part of the evidence which shows that the plaintiffs had been tethering their cattle or taking their bullocks etc., through the land in suit, but it found that the land in suit was the Sehan of the defendant's house. If the land in suit was the Sthan of the defendant's house in the sense of being appurtenant there to, must be deemed to belong to him on the principle underlying Section 9 of the U. P. Zamindari Abolition and Land Reforms Act. It is not necessary indeed it is not the practice in our village to prevent neighbours from passing or re-passing over once outer Sehan land. The use by the plaintiffs of the defendant's outer Sehan for tethering his cattle or passage of his bullocks off and on could give him no right to do so without any restraint by the defendant unless the plaintiffs had set up and established to have acquired that right by custom or prescription. The plaintiff did not set up any such case. The case of joint ownership set up by them could not be said to have been established. Under these circumstances, I think the trial Court was right in dismissing the suit and the lower appellate Court was in error in reversing that decree. In the result the appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set aside. The decree of the trial Court dismissing the plaintiffs suit with costs is restored. The parties shall, however, bear their own costs in this Court.