MAHADEO Vs. RAM BHAROSE

JUDGEMENT

(1.) The facts of the suit out of which this appeal arises are these:

(2.) Ram Bharose and Chakkoo were the owners of a house and chaupal in the village of Marka in the Banda District. Some 8 or 9 years ago the house fell down. The land was not cleared, and the dilapidated house remained in possession of the plaintiffs. The defendant opened a door in his house which adjoins, facing on the dilapidated house in a manner which would interfere with the privacy of the occupants of the house when the house was re-built and again became occupied. The plaintiff's case is that in 1920 they commenced to repair the dilapidated house. The defendant interfered with their possession of the house and chaupal; hence the suit for possession of the dilapidated house and chaupal and for the closing of the door. The Munsif found that as the house had fallen down,the plaintiffs had lost all title therein, the ruin and the site having escheated to the zemindar; and he, therefore, dismissed the suit in respect of possession of the dilapidated house and the closing of the door, but as he found that the plaintiffs had good title to the chaupal, he decreed the suit for possession of the chaupal. 2. The Additional Subordinate Judge found that the dilapidated ted house was still a house; that the plaintiffs bad title to iff which they had never lost; that the defendant had interfered with their possession both over the house and the chaupal, and that the opening of the door was prejudicial to the plaintiffs title. He, therefore, decreed the claim in full. The defendant comes here in second appeal.

(3.) The main point taken by his learned Counsel is that, when a tenant's house falls down the site reverts to the zemindar. I cannot accept this conclusion. If it were accepted, the consequences would be somewhat surprising, for there is not a year in this Province when a large number of tenants houses do not fall down. In a year such as the present, in which the rains have been very intense for a short period, in many villages the greater part of the tenants houses have practically melted away, and if it were decided that this circumstance involved the escheating of the site to the zemindar, a large number of agricultural tenants would be homeless at the present moment. There is no authority for the view propounded. The real test is this: Has the tenant abandoned the house? A tenant is not expected to keep his house up to any particular standard of repair. If he lets the roof fall in and chooses to reside in a roofless building he cannot be ejected for the reason that he has allowed the disrepair to get beyond a certain point. The question is, have the premises been abandoned? And on the learned Subordinate Judge's finding it is quite clear that these premises were never abandoned. The plaintiffs have certainly taken a considerable time for repairing them but they are at liberty to repair them now. It is to be noted that no claim has been asserted by the zemindar in the matter. I, therefore, find that the learned Subordinate Judge was right. The plaintiffs have good title to the dilapidated premises as well as to the chaupal. They have every right to repair those premises. The opening of the door interferes with their user. I, therefore, dismiss this appeal with costs.