ZAHID ALI Vs. SUKHU LONIA

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of suit brought by certain zamindars for recovery of proprietary possession over two plots of land. The plaintiffs case was that the defendants made some constructions without their information and permission on the larger plot, and that subsequently they built another house on the smaller plot. The defence raised by the contesting defendants was that with regard to the larger house their old house which stood on the site and had been of thirty years standing fell down some years before the suit and the defendants repaired it on the old eight foundation. They denied the plaintiffs allegation that it was built only a short time before the suit. As to the smaller house, their plea was that there was a thatched house on this site in which the defendants used to keep their chaff and tied their bullocks and buff aloes and which they, with the permission of the plaintiffs, converted into a tiled house some two years before the suit. The Court of first instance decreed the claim with regard to the smaller house, and that decree has been affirmed on appeal by the lower appellate Court, and the smaller house is not in dispute before me. The first Court, however dismissed the claim with regard to the larger house and that decree has been affirmed on appeal. The finding of the first Court was that the larger house was not an old one, that it had been built recently, and that the permission of the zamindar had not been established. It however held that plaintiffs were estopped from seeking to demolish it. Its findings were that it was difficult to believe that the plaintiffs had not heard of the constructions as they professed. The Court thought that the plaintiffs had more than several opportunities to hear of the constructions, and that they failed to get the news because they did not care to get it or because their karindas wilfully concealed it from them. Under those circumstances it held that the plaintiffs were estopped from seeking its demolition.

(2.) The learned District Judge has written a judgment which indicates a vacillating frame of mind. Having referred to the decree of the first Court he remarks; "I have been taken over the evidence in detail and so far as the main facts are concerned I entirely agree with the lower Court." He then disposes of the defendants appeal with regard to the smaller house. Dealing with the dispute as regards the larger house the learned Judge says that he was quite satisfied that it was built on waste land less than two years ago and without permission. In the earlier portion of his judgment he had remarked that when the two houses could not be over two years old or perhaps less it knocked the defence theory and evidence on the head as to the bigger house having been built nine years ago, and with it must go the evidence as to payment of nazrana and permission as to the smaller house. Having recorded the finding that there was no permission, he went on to suggest that some nazarana might have been paid for the corner house Ex. G. which was not in dispute, and that it may be that the defendants have been more grasping and have extended their house still further. Later on, however, he remarked: "I am not prepared to entirely ignore the defence story as to payment of nazrana, "though on the evidence as to the time it is said to have been made it would be difficult to act upon the defence evidence." "When he rejected the defence evidence as to the payment of nazrana it is impossible to think that he has accepted the fact as proved. In any case that remark must apply to some nazrana paid in respect of the house Ex. G.

(3.) The real ground on which ha has dismissed this claim is, as he puts it, his discretionary powers on equitable grounds, the reasons being (1) possible injury or loss to either side, (2) clear indication that for five or six months the house was under construction, and admittedly not a linger was raised, and (3) the possibility that after all there may be some truth in the defence story though the evidence must be rejected.