RESHMA BIBI Vs. BHAWANI SARAN

JUDGEMENT

(1.) THERE are 18 zemindars in the village Kunwardah in the Cawnpore District. On the facts, a tenant, Bhawani Saran, has constructed a masonry well on waste land belonging to all these 18 zemindars at a cost of Rs. 500 for irrigating his occupancy holding. Seventeen of the zemindars have acquiesced in his so doing. The 18th, a widow called Reshma Bibi, who is the present plaintiff-appellant, has sued Bhawan Saran and asked for the relief that he should close this well. which he has constructed at a cost of Rs. 500, joining the remaining 17 zemindars as defendants. The lower Appellate court has found clearly that the well was constructed with the consent of all the zemindars save the plaintiff-appellant, at considerable expense, upon waste land, for the irrigation of Bhawani Saran's occupancy holding. The well is admittedly an improvement within the meaning of Section 4 (12) of the Tenancy Act. Under the Tenancy Act an improvement need not be executed on the holding if it is executed directly, for its benefits and an improvement includes a masonry well. Under Section 88 of the same Act every tenant not being a non-occupancy tenant is entitled to make an improvement. It is urged by the learned Counsel for the plaintiff appellant, that, on the face of it, whatever be the law, an occupancy tenant has no right to trespass on the zemindar's land for the making of an improvement. I agree with him to a certain extent, but in such a case as this, where 17 out of the 18 zemindars have agreed to the making of the improvement, 1 do not think that a Court should interfere. The benefit of the occupancy holding is the benefit of the whole village whether the plaintiff appellant has an interest in that particular occupancy holding or not, I do not see that any useful purpose will be gained by issuing 18 notices in this matter, the number of notices which would be necessary if the appeal was admitted. I dismiss it under Order XLI, Rule 11.