GOPI SHANKER Vs. MTLILAWATI

JUDGEMENT

(1.) This appeal has been referred to a Bench of two Judges, because the learned Judge before whom if came thought that the matter under consideration required careful examination. The plaintiff is the zamindar of the village and the defendant, who is a minor, is the daughter of a tenant who cultivated some of the plaintiff's lands in the village. The tenant having died and, under the tenancy law, the daughter not being an heir to the tenant, the tenancy lapsed to the plaintiff. He thereupon brought the suit out of which this appeal has arisen to recover possession over the house occupied by the late tenant, on the allegation that the house also lapsed to the zamindar. The plaintiff accordingly asked for possession over the house. In the plaint the plaintiff suggested that the Court might, if it thought necessary, allow the defendant to remove the-materials of the house leaving the site to be occupied by the plaintiff.

(2.) The defence was that the plaintiff had no right to turn the defendant out of the house, that the house had been occupied for a hundred years by the defendants ancestors and that the mere fact that the tenancy lapsed to the plaintiff would not be any ground for the plaintiff to take possession of the late tenants house. The Court of first instance decreed the suit for possession of the site and allowed the defendant three months time to remove the materials. On appeal the learned Additional Subordinate Judge of Farrukhabad dismissed the suit in its entirety. He held that the house was not an appurtenance to the holding of the late tenant Girwar.

(3.) In this Court it was urged that the presumption of law was that the house was an appurtenance to the holding, especially as the house in dispute was the only one occupied by the deceased. Other-points were taken in the grounds of appeal but they were not pressed.