SARJU PRASAD Vs. SHYAM LAL

JUDGEMENT

(1.) This is a second appeal on behalf of a plaintiff whose suit for demolition of certain constructions by the defendants has been dismissed by the lower appellate Court. The plaintiff is a zamindar of the whole village of Chargawan in Gorakhpur District and he brought a suit for demolition of certain constructions. The Munsif decreed demolition only of constructions marked E and the lower appellate Court decreed demolition of constructions marked B and D. The present second appeal is in regard to four constructions: A, a Saiban which was found by the lower appellate Court to be old, that is more than 12 years old. It is clear that the plaintiff cannot get a decree for the removal of A. Reference was made by the Learned Counsel for the appellant to a ruling. Jai Kishun V/s. Moti Chand (1906) 3 A.L.J. 627. In that case the lower appellate Court held as a fact that the possession of the defendant was not adverse and therefore that possession for more than 12 years would, not give the defendant title by adverse possession. In the present case the finding of fact is the opposite that the possession of the defendant was adverse. The defendant therefore; has acquired title by adverse possession.

(2.) The next construction is C, a charan or cattle-shed which is attached to the house of the defendants, and G a Kolhu or a place for the grinding of suglar cane and H a Golaur or fireplace for boiling sugarcane juice into gur. These two constructions G and H are close to the house of the defendants. The lower appellate Court has found that these three constructions C, G and H are more than 12 years old, and that they are necessary for agricultural purposes. The passage in the judgment is as follows: But G is the oharan for cattle while G and H are Kolhu and Gulaur and these are necessary for agricultural purposes. The defendants could not keep the cattle, the Kolhu and Gulaur inside their house and these must have been on the land in front of the defendants house. Moreover the Kolhu and Gulaur are only put up temporarily when sugarcane crop is ready. I therefore hold that the plaintiff was entitled to get the constructions B and D demolished and not G, G and H and also A which is more than 12 years old.

(3.) In second appeal the argument was made that no ruling was shown on the strength of which the legal doctrine laid down by the lower appellate Court could be based, and further if these constructions were necessary for agricultural purposes, then it should have been shown on behalf of the defendants that these constructions could only be made in this particular place and it was suggested that they might have been made in the field of the defendants in which the defendants are the, tenants of the plaintiff. A suggestion is made that an issue should be remitted on this point as to whether the constructions could have been made elsewhere. I find however that in the written statement in para. 8 of the additional pleas the defendants pleaded: They are very necessary for keeping the cattle of these defendants, for carrying on cultivation, and for storing the husbandry implements.