SHEO SAHAI Vs. TILOK SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal in a suit for possession of a house. Both the lower Courts dismissed it, and the plaintiff has preferred the present second appeal. The house in dispute lies in village Hura, district Shahjahanpur. The plaintiff's father was a patwari of village Hura, and had also an occupancy holding in that village. The present case relates to his residential house. The plaintiff himself has been a patwari in a village in the adjoining district of Kheri. The house was in a dilapidated condition for sometime. One sahdari was, however, in existence. It fell down in July 1932. The plaintiff's case is that he attempted to rebuild the house in Pus following, i.e. December 1932, but the defendants, who are the zamindars of the village, prevented him from doing so. He then brought the suit which has given rise to this appeal on 9 January 1933. The defence was that the plaintiff was the occupier of the house only as a riaya and that he abandoned it; the house fell into ruins, and the defendants, who are the zamindars of the village, took possession of the site, as they were entitled to do. The principal question, which emerged from the pleadings, was whether the plaintiff abandoned the house and allowed it to fall into ruins, so as to entitle the defendants (the zamindars) to resume possession of the site.

(2.) The learned Subordinate Judge found that the major part of the house had fallen down about 10 or 11 years before the suit, except for one sahdari, which remained standing till Asarh (July) 1932, when the sahdari also fell down, and that the plaintiff did not rebuild the house. The learned Judge held that, in those circumstances, the site should be deemed to have been abandoned by the plaintiff and the defendants (the zamindars) were entitled to take possession of it.

(3.) It is contended on behalf of the defendant-respondents that this is a finding of fact "which should be taken as conclusive in second appeal. The question whether, in given circumstances, the occupier of a house should be deemed to have abandoned it depends upon the inference of the occupier's intention from the proved facts of a particular case, and is not necessarily one of fact; but assuming that, in this case, the finding is one of fact, I think it is vitiated by a disregard of an important piece of evidence afforded by a decree inter partes. In 1923 the plaintiff sued the defendants for recovery of possession of this very site, which had been taken possession of by the latter apparently on the ground that the house had fallen down and the plaintiff had abandoned it. The sahdari was the only remnant of the house. The relief, which the plaintiff claimed, was recovery of possession of the house and injunction restraining the defendants from interfering with the plaintiff's house and directing them to remove their ghura" and certain pegs, which they had fixed. The only paper relating to that litigation which is on the file is the decree. It gives the substance of the plaintiff's claim and awards to him possession of the house shown by the letter B in the amin's map made part of the decree. It also grants a mandatory injunction directing the defendants to remove their ghura, "kanda" and the pegs. The plan clearly shows that the condition of the house in 1923 was the same as it was before Asarh 1932, when the sahdari" fell down. Rightly or wrongly, the Court held between the parties that the existence of the "sahdari", coupled with the determination of the plaintiff to retain possession of the house, precluded the inference of abandonment on his part. So long as that state of things existed, no occasion could arise, in view of the decree, for the defendants to take possession of the site. When the "sahdari" fell down in July 1932, the defendants thought that, in the altered circumstances, they were justified in doing what they had been held not to be entitled to do in 1923.