LACHMAN Vs. LAL RATNAKER SINGH

JUDGEMENT

(1.) This is a Letters Patent Appeal arising out of a suit brought by the zamindar against the defendant Lachman and other members of his family, for the demolition and removal of a channel which has been built by the defendant on the open piece of ground in front of his house. The defendant is a tenant in the village but the site in dispute is a part of the abadi lands and is not included in his tenancy lands. There was a further relief claimed for a perpetual injunction restraining the defendant from interfering with the plaintiff's right, or making any constructions on the land. The defence was that the site was a part of the defendant's sehan, which he had been using and over which he had been tying his cattle, and that he had a right to build upon that land. There was a further plea that the plaintiff was estopped from maintaining the suit and also that the claim was barred by limitation. All the Courts have held that the defendant has no right to build upon this land at all, but the first Court held that the plaintiff was estopped, and that the claim was barred by limitation. The lower Appellate Court, however, came to a contrary conclusion.

(2.) It held that the defendant was not entitled to put this building on the land in front of his house, that there was no estoppel against the plaintiff because he was absent from the village and had no personal knowledge of the construction until it was completed. The Court further held that the suit was not governed by the two years rule prescribed by Art. 32, Limitation Act, but actually was a suit for proprietary possession governed by the 12 years rule of limitation or at any rate by the six years rule under Art. 120. The suit was accordingly decreed. A learned Judge of this Court has affirmed that decree. He has come to the conclusion that the previous use of the land by the defendant as a sehan did not justify the defendant in making the structure in question on it. The learned Judge has further held that Art. 32 is inapplicable to a case where there is a mere licence revocable at any time, as distinct from a legal right to remain in possession of the property, and has distinguished two earlier cases of this Court on the ground that in those cases the land built upon was part of the holding of the defendant tenant over which he had exclusive possession. In our opinion, the view taken by the learned Judge is perfectly sound.

(3.) There is no proof that the land had been granted to the tenant for building purposes or for the matter of that for any particular or specific purpose. All that we know is that there is an open piece of ground in front of the defendant's house which he has been using as a sitting place and for the purpose of tying his cattle thereon. In that sense he has treated it as a sehan in front of his house. The land, therefore, has not been in the exclusive possession of the defendant in the sense in which a lessee or an agricultural tenant is in possession of his leased property or tenancy land. The defendant is a licensee within the meaning of Section 52, Easements Act, and has been granted a right to do certain acts upon this piece of land in front of his house. In certain circumstances a user as a sitting place or for tying cattle may be absolutely necessary for the comfort or convenience of an agricultural tenant who has settled in the village, and such a right may not be revocable. But that is quite a different thing from saying that the tenant is in exclusive possession of the land almost as a lessee with the right to do what he likes upon it and even to put up a building upon the land. If such a course of action were allowed, the result would be that the tenant can build upon the land in front of his house and then use the land further away as his sehan and later on build upon that land as well and claim more land. Such a right has been denied to tenants in several cases in this Court. We may refer to the case in Ratan Barhai v. Kishen Dei and cases mentioned therein. A tenant who has been allowed to use the land in front of his house has no right to build upon it so as to take exclusive possession of it to the ouster of the zamindar, without his consent. The learned Judge, therefore, has taken the correct view that there was no justification for the defendant to make this structure on the land without the permission of the zamindar. The finding that there was no estoppel against the plaintiff because he did not come to know of the constructions until they had been completed is a finding of fact and must be accepted as final.