BHAU MAHADU TORASKAK Vs. VITHAL DATTATRAYA PENDHARKAR

JUDGEMENT

(1.) The plaintiff sued to get a declaration that the property in suit belonged to him, and that the defendants had no right to build on it, and prayed that the defendants might be ordered to remove their buildings on the suit property, and in default he might be allowed to remove the same. An issue was raised whether the defendants proved that they were Mirasi tenants, and that was found in their favour. But the Judge came to the conclusion that they had" no right to build on the plaintiff s ground, and gave the plaintiff the decree he had asked for.

(2.) In appeal the learned appellate Judge came to the conclusion that whether the defendants were Mirasi tenants or permanent tenants or annual tenants, the question with regard to the buildings was the same. He certainly pointed out that what the learned Judge in the trial Court really meant was that the defendants had become permanent tenants of the land under the presumption arising from Section 83 of the Bombay Land Revenue Code, and such permanent tenants are not Mirasdars. But he confirmed the decree of the lower Court apparently on the ground that the defendants as tenants could not erect the building in question. That depends entirely upon the nature of the building, and both Courts apparently looked upon the nature of this particular building from the wrong point of view, and without proper reference to the previous history of the suit. On the land there was previously a thatched hut or chhappar. There were also kuchha huts which were put up by the predecessor of the defendants for the better cultivation of the land. The defendants pulled down the thatched hut or chhappar, and erected a new building on the site and also on a few feet of additional ground. No plan of this building was put in, but the evidence shows that the new building of stone, brick and mortar had a central court yard and two pucca verandahs. The Judge came to the conclusion that it was far too ambitious to be used solely for storing implements, tethering cattle and other purely agricultural purposes, and judging from the standard prevailing in this part of the country it was probably meant as a dwelling house. Then he considered that the law seems to have been well-settled that no tenant in this country is at liberty to erect a dwelling house upon agricultural holdings for other than agricultural purposes and thereby to alter the character of the holding.

(3.) That may be perfectly correct. But a tenant might well be allowed to erect a building on his holding in order that ha may live there himself, and that is certainly the law in England, and I cannot see if the defendants in this case pulled down the chhappar or hut and utilised the space and a small additional space for buildings where they themselves would live when they wanted to be on the land for cultivation purposes, that it was contrary either to the provisions of the Transfer of Property Act which could only be applied by analogy, or to any other law that I am aware of.