B MAHABIR SINGH Vs. BSHEO SHANKAR SINGH

JUDGEMENT

(1.) THIS is a second appeal from the decision of the learned Additional Subordinate Judge of Ballia. The plaintiffs brought a suit for an injunction restraining the defendants from opening a door in their house opposite a piece of land lying between the plaintiffs and the defendants houses. They also asked for a mandatory injunction ordering the defendants to close this door and an injunction to restrain the defendants from going out and coming in by this door and using this piece of land. The trial Court came to the conclusion that no action lay on the facts of the case. The lower appellate Court however decided that the plaintiffs should have an injunction restraining the defendants from using the land, but not an injunction ordering them to close the door. The defendants appeal. THIS is a peculiar and not an uninteresting case. The plaintiffs and the defendants are ryots. They have their houses in the abadi as appurtenant to their agricultural holdings. Between their houses lies a piece of waste land which is the subject-matter of this action. That waste land of course obviously belongs to the zamindar. Neither party to this dispute has any proprietary interest in this portion of land at all. The findings of the lower appellate Court, which I accept in their entirety, show that for some unspecified number of years the plaintiffs have been making some sort of use of this land. The learned Judge says that they have "placed on this land chhappar, wood and bricks, etc., and chulhas on occasions of marriages." On this the learned Judge decided that the plaintiffs had possession of this land of such a nature that they could exclude the defendants from using it at all.

(2.) IN my opinion, the learned Judge has misdirected himself in law. There is no direct authority as far as can be found in any of the High Courts of INdia upon a point such as this. The principle however appears to me to be clear. Both of these ryots must have had exactly the same rights (if any) to use this land. It; was waste land lying between their two houses. The defendants had precisely as much or as little right as the plaintiffs to use this land. The question which I have to decide is, have the plaintiffs done any. thing at all which gives them an exclusive right to use this land? Can they prevent the defendants or any of the other villagers from, say, passing across this land? "Possession" may possibly be defined as a user of land to the exclusion of others. If, for instance, the plaintiffs in this case had built a wall round this portion of land or built a house upon it, they would undoubtedly have been in the position to claim possession. Whether they could have enforced that claim apart from adverse possession as against another ryot is another matter. Where, as in this case, however they have been making only a temporary use of the land for the occasional necessities of a house-holder, such as keeping fire-wood until it is exhausted, bricks until they are used and on the occasion of a marriage once every few years placing chulhas to cook food, it could not be said that an exclusive user has been established. There is nothing in any of these acts to stop any one else from doing the same thing. Merely because the defendants had not up to the date of suit done any of these things it does not establish that they have not a right to do them now. Before a person who is not the owner of land can prevent another person from using the land to the same extent as him self, he must establish a right by acts of exclusive possession of a very definite nature. It has been held in Framji Cursetji V/s. Gokuldas Madhowji (1892) 16 Bom. 338, that a miscellaneous user of this sort cannot create any title by adverse possession. That appears to me to establish the principle that a miscellaneous user of this sort is not possession at all. If acts of this sort constituted possession, 12 years continuous user would establish adverse possession. IN a country like INdia where people have need of land for their miscellaneous house-hold requirement, and when such user is not objected to by any one it would be against public policy to rule that a user of this sort prevents a neighbour from enjoying similar user. IN my opinion, the decision of the learned Judge in the Court below is wrong in law and the appeal must be allowed with costs and the decree of the Court dismissing the suit is restored. Leave to appeal is granted.