MOHAMMAD SHER KHAN Vs. AMJAD HUSAIN

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-respondents for ejectment of the defendant-appellant from a house situate in mohalla Balapir in the city of Kanauj, within the municipal limits, on the allegation that it had been built over 25 years ago by one Murtaza Khan with the leave and license of the plaintiff-respondents who own all lands lying within the ambit of the aforesaid mohalla Murtaza Khan sold the house in question to the defendant-appellant by a deed, dated 30 September 1923. The plaintiff-respondents thereupon intimated to the defendant-appellant that the license had been revoked and that they (the plaintiffs) desired to take actual possession of the site in suit, which was eventually instituted against the appellant as the sole defendant and out of which the present appeal arises. The plaintiff-respondents claimed the relief of actual possession subject to the defendant's right to remove the materials of the house if they so desired.

(2.) In defence it was pleaded that the plaintiffs were not the owner of the site, that by custom obtaining in the city, of Kanauj every occupier is the owner of his house with its site and that transfers have been all along made in respect thereof, the city of Kanauj not being an agricultural village in which zamindars have the right of interference.

(3.) I have mentioned, with some precision the defendant's plea, which refers to custom, as I find that the lower appellate Court has overlooked it and held: that the suit is not barred by time and adverse possession and as the appellants are owners of the site on which the house in dispute stands they are entitled to take back their land and of course the respondent is entitled to take materials of the house and he requires time for doing so and, therefore, I give him two months time for removing the materials.