BADRI LONIA Vs. PANDIT DWARKA PRASAD RAM SHUKLA

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit in which the plaintiff who is a zamindar seeks an order for the demolition of a house which has been erected upon parti land in front of the defendant's house. The main defence to the suit was that the house had been erected by the defendant with the implied permission of the zamindar who had acquiesced in the construction. This defence has not been sustained in the lower Appellate Court. Upon a consideration of the evidence the learned Civil Judge has reached the conclusion that far from acquiescing in the construction of the house the plaintiff took active steps to prevent the construction being completed.

(2.) It was contended in appeal however that under the provisions of the Tenancy Act of 1939 a defendant who is a ryot in the village in which his house is situated was entitled to build a residential house upon the parti land in front of the existing house. In support of this contention learned Counsel for the appellant referred to the definition of "improvement" in that Act. "Improvement" in reference to a tenant's holding is defined in the Act as a dwelling house erected on the holding by the tenant for his own occupation or a cattle-shed or a store house or any other construction for agricultural purposes erected or set up by him on his holding. Holding is defined as a parcel or parcels of land held under one lease, engagement or grant, or in the absence of such lease, engagement or grant under one tenure and in the case of a thekadar includes the theka area. "Land" is defined as land which is let or held for growing of crops, or as groveland or for pasturage. It includes land covered by water used for the purpose of growing singhara or other produce, but does not include land for the time being occupied by buildings or appurtenant thereto other than buildings which are improvements.

(3.) Now the house which has been erected by the defendant is built in land which is within the abadi of the village. It has not been built upon the defendant's holding. The law therefore with regard to the tenant's right to construct buildings in the abadi is not altered by the provisions of the 1939 Tenancy Act. It is well settled that a ryot may not build a dwelling house on the sahan in front of his house: see Ratan Barhai V/s. Kishen Dei (1938) 20 AIR All 288. The finding that the house built by the defendant is a new structure and that the plaintiff did not acquiesce in its construction is sufficient for the disposal of this appeal. In the result the appeal is dismissed with costs.