1. This appeal arises out of a suit brought by a zemindar against a tenant of his who had a house in the abadi for the demolition of a pucca well which that tenant had sunk in the Sahan in front of and appurtenant to his house. Both Courts below have dismissed the suit.
2. The plaintiff appeals. He claims that under what has been called the common law of these provinces, a zemindar is the owner of every inch of ground within the ambit of his zemindari, and that no tenant can, without his consent, make any permanent structure on any part of that zemindari. It is further argued that the sinking of the well in the Sahan of the defendant's house is a use of the land which is inconsistent with the purposes for which that land was given to the tenant, namely for ingress and egress, and that being so, the tenant has no right whatever to sink the well.
3. There is no authority in this Court in support of the plaintiff's case and this is not surprising for it seems to us that the plaintiff is in no way damnified by the action of the defendants. It has been ruled many years ago that a tenant can improve his house in the abadi ; vide Balkishen v. Muhammad Ismail Khan (1898) A.W.N. 44. There are, however, two rulings of the Oudh Court which are directly in point. In Mahabal v. Sarju (1917) 4 O.L.J. 454, Mr. Lindsay, then Judicial Commissioner and now a Judge of this Court, held under precisely similar circumstances that the sinking of a pucca well in a part of the land which was appurtenant to a tenant's house would not give a cause of action to the zemindar. The particular portion of land in that case on which the well was sunk, was described as 'Sahan-wa-rasta.' That decision was followed by the same Court in Sheo Singh v. Bajeshwar Bali (1919) 6 O.L.J. 281. In our opinion these decisions are right and we follow them. We, therefore, dismiss the appeal with casts.