GURCHARAN PRASAD Vs. JAI NARAIN SINGH

JUDGEMENT

(1.) This is a second appeal by the plaintiff, a portion of whose suit has been dismissed. The plaintiff sued as the zamindar of a certain village in Jaunpur District, stating that the defendants were tenants and that in certain plots with which the defendants had no concern, the defendants had planted a large number of Mahua and mango trees and bamboo clumps. The two plots in question Nos. 437/2/2 and 424/1 comprise about 9 1/2 acres. The plaint asked that the plaintiff might be put in possession of these plots by removal of the trees planted by the defendants. The defendants set up various pleas admitting that the trees existed on the land in dispute against the will of the plaintiff and claiming that the defendants were former zamindars and that the land in question was not sold when their zamindari was sold and that they had rights in the land in question and that the land constituted a grove. An issue was referred to the Revenue Court which found that the defendants were not grove-holders in the land in question, and this finding of the Revenue Court was upheld by the lower Appellate Court. The Court of first instance applied Art. 32, Limitation Act, to the case and granted the plaintiff a decree directing defendants Nos. 1 to 5 to remove the trees which were under two years old and restraining these defendants by an injunction from planting any new trees. The claim was dismissed in regard to trees which were more than two years old. The plaintiff appealed and the defendants filed cross-objections. The lower Appellate Court dismissed the appeal of the plaintiff agreeing that the proper Art. to apply was Art. 32.

(2.) The chief point argued in second appeal is that Art. 32 which prescribes a period of two years limitation does not apply. That Art. is stated to deal with a suit "against one who, having a right to use property for specific purposes perverts it to other purposes." The defence is based largely on an admission by the Pleader for the plaintiff in the present suit which is translated at p. 19 of the paper book. This statement sets out that the defendants and other residents of the village can graze their cattle on kot land (that is one of the numbers) during the rainy season and their cattle can lie on it and can walk on it and defendants and residents of other villages can use it to attend to the call of nature and as threshing floor and for preparation of cowdung cakes, for sugar mills and cattle trough, etc. All these rights (haquq) have been, allowed by the zamindar to the tenants and to the defendants by way of favour. It was further stated that the defendants had no right to plant any new trees without the permission of the zamindar.

(3.) For the defendants it is urged that the use of the word haquq implies that the defendants had rights in this land and, therefore, a right to use the property for specific purposes within the meaning of Art. 32, Schedule I, Limitation Act. We do not consider that by the mere use of the word haquq Counsel for the plaintiff meant to make any such admission, and even if this were considered an admission, the case must be decided on the evidence. The Court below has not found that there was any right to use the property within the meaning of the use of the word right in Art. 32. The way in which the Court finds that the defendants could use the property in our opinion, amounts to a mere user by way of license in common with persons from other visages. Art. 32, in our opinion, deals with the case of a person having legal right to use certain property. Two cases have come before this Court dealing with similar matters. The first ruling is reported in Musharraf Ali V/s. Iftekhar Husain 10 A. 634 : A.W.N. 1888, 257. In that case a zamindar brought a suit for injunction to have certain trees removed from waste land on which the defendants had planted them. It was held that such a suit was governed by Art. 120, and not by Art. 32. In Muhammad Shaft v. Bindeshri Saran Singh 46 A. 52 : 75 Ind. Cas. 266 : A.I.R. 1924 All. 443, there was a case under similar circumstances where the difference lay that the plaintiff sued for possession as in the present case. As the plaintiff sued for possession, it was held that the period of limitation in a suit for possession under these circumstances was 12 years. Presumably Art. 142, Limitation Act, was applied. Learned Counsel has relied on a ruling of the Oudh Chief Court, Ismail V/s. Thalcur Lal 93 Ind. Cas. 69 : A.I.R. 1926 Oudh 341 : 13 C.L.J. 428, where a plaintiff zamindar brought a suit to restrain the defendant from burying his dead in a portion of a ground used as a public grave-yard and for removal of trees eight years after they were planted and for possession of the site. It was held that the claim for removal of the trees was governed by Art. 32, and was barred by time. We consider that this case was different because the land being a graveyard the plaintiff was not entitled to sue for possession which was refused.