RATAN BRAHAI Vs. MTKISHEN DEI

JUDGEMENT

(1.) This second appeal raises an important point of law, and there is unfortunately no case decided by a Bench of this Court which may be directly to the point. The point raised is whether a raiyat in a village abadi in this part of the country has a right to construct a building on land which he was using as an outer "sahan" appurtenant to his house. The plaintiff, who is a zamindar, came with the allegation that the defendant had constructed a building without her consent, and sought the ejectment of the tenant from the land and demolition of the building. The learned Judge of the appellate Court found that a part of the building was old, that the rest was new and that the new portion had been erected on what had been the defendant's "sahan" or court-yard, outside the house. On this finding he decreed the suit. In this Court it has been contended that a raiyat is entitled to build on the open space which he enjoys as his court-yard appurtenant to his house.

(2.) Before we examine such authorities as may be on the point, let us consider the situation from the legal point of view. A raiyat holds either under a lease or under a license. If there is a lease and if the lease contains a term entitling the raiyat to build on any land that may be in his possession, the terms have to be proved. In this case no such lease has been pleaded and no terms like those have been established. In the absence of the lease we can regard a raiyat only as a licensee, who has been allowed, with the implied consent of the zamindar, to build on the zamindar's land. This further implies that the license that was granted to the "raiyat" was a permission to use the land in his occupation in the way in which he has been allowed to use it. In other words, where there is a house existing on a portion of the land, it will be presumed that he was allowed to build on that portion of the land: and where the land is vacant, it will be presumed that he was allowed to occupy that land as his court-yard, without any building thereon. I am not aware of any third method of a raiyat in a village abadi holding land. If this be the right view of the position of raiyat, he cannot certainly build on what was his outer "sahan."

(3.) Coming to authorities, it has been held by a Bench of this Court that a tenant can dig a well in his court-yard: Mahadeo Rai V/s. Jan Muhammad . This case does not establish the proposition for which the appellant contends that he can build on the land. A well usually occupies a very small portion of land, and further it is necessary for supply of the essential necessity for life, water. The very existence of man depends on a supply of water, and there cannot be any difficulty in implying that the contract or license under which the raiyat holds included the right to construct a well. If a man has to live on a piece of land, he may do all that is necessary for the purpose. We have got a few other cases decided by Single Judges of this Court; but most of them may be distinguished. In one case Padarath Tewari V/s. Baz Singh (1915) 29 IC 264, it was found that a piece of land was being used for making jaggery and there was already some sort of shed over the place. It was presumed that the land had been given for the purpose for which it was being used and that the tenant could build a house on that land for the same purpose for which the land had been used. This case is, in my opinion, distinguishable. The license was already there to use the land in a particular way. There cannot exist any sugar cane press and cattle trough or cattle shed without the zamindar's permission. That permission might be taken, in a particular case, as implying further permission to erect a more substantial building than a mere thatch. In Ram Pratap Singh V/s. Lal Bahadur Singh , which was again decided by a Single Judge, the head-note runs as follows: A raiyat in a village is entitled to put the sahan of his house to such use as suits his convenience, provided that by doing so he does not in any way adversely affect the proprietary rights of the zamindar.