Deoki Nandan, J.
1. This a plaintiff's second Appeal in a suit for demolition of wall shown by letters B C and foundations shown, by letters CD, DF, FJ, EM, and any other constructions which the defendants may make during the pendency of the suit and for possession over the land underneath, shaded yellow on the plaint map and on which the defendants may be found to be in possession. The suit was decreed by the trial court but was dismissed by the lower appellate court. The plaintiff's case was that he owned a plot in the nature of Chakki Khana, shaded blue on the plaint map, and the land shaded red and yellow was appurtenant thereto; that he had been the owner in possession thereof for the last 27 or 28 years; that the defendants had no concern with the land but they constructed a wall AB adjacent to the plaintiffs Chakki Khana which obstructed the passage from the Chakki Khana to the house shown by the letter Z at the back of the Chakki Khanna which passage was in existence for more than 20 years and was being Used as such by the plaintiff continuously as of right and without any obstruction; that the defendants had encroached upon a part of land appurtenant to the plaintiff's Chakki Khana the area of which was shaded red and had started digging foundations and making constructions which were sought to be demolished.
2. The defendants pleaded that the Chakki Khana was constructed by one Mast Ram 27 or 28 years ago, that the business failed and the Chakki Khana property reverted to the zamindar; that the Chakki Khanna property was in the shape of a Khandhar (which) along with the other land was taken by the first defendant from the zamindar in the year 1948; that at any rate the land in question had never been the sehan of the Chakki Khana and the plaintiff had no right of easement by way of passage as alleged. It was further pleaded that the land in dispute lay in plot No. 501 of which the first defendant was the bhumidhar and as such the suit was barred by Section 49 of the U. P. Consolidation of Holdings Act. Plea of ownership by adverse possession was also raised.
3. The plaintiff filed his replication alleging that the land in suit formed part of plot No. 117 and was obtained by his father and uncle from the zamindar by Ijazatnama dated 5th March, 1938.
4. The trial court framed five issues. On the first issue it held that the plaintiff is the owner of the land in suit; on issue No. 2 that the suit is within time; on issue No. 3 that the defendants had failed to prove that they acquired any title by adverse possession; on issue No. 5 that the suit is not barred by Section 49 of the U. P. Consolidation of Holdings Act; and on issue No. 4 that the plaintiff is entitled to the relief claimed.
5. The lower appellate court has not formulated the points arising for its determination but has held that the plaintiff has failed to establish his ownership with regard to the land in suit and has also failed to show that it is a sehan and that, therefore, the plaintiff is riot entitled to any relief.
6. The learned counsel for the plaintiff-appellant urged that the finding of the lower appellate court is vitiated by treating the Ijazatnama dated 5th March, 1938 to be inadmissible in evidence. He urged that once the Ijazatnama is admitted in evidence it would show beyond any shadow of doubt that the plaintiff's predecessor in-interest had been allowed to build a Chakki Khana which he did, and having done so became the owner of the Chakki, Khana and entitled to use and enjoy it with all the land appurtenant thereto; and having continued to possess the Chakki Khana when the zamindari was abolished on 1st July, 1952 the land underneath and appurtenant to the Chakki Khana stood settled with him by the State Government under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act. The learned counsel for the appellant was also critical of the use made by the lower appellate Court of the Section 49 of the U.P. Consolidation of Holdings Act in this matter. He urged that the Chakki Khana was a building. It was not claimed by the plaintiff that he was a bhumidhar or sirdar or asami of the land. The defendants' claim that they were bhumidhars of the land in dispute was irrelevant because the consolidation authorities had not found it to be so, and indeed the nature of the land was such that it was not land within the meaning of that expression for the purposes of the U. P. Consolidation of Holdings Act, and the consolidation authorities had no jurisdiction to decide any dispute of title relating to such, land. Now the Ijazatnama dated 5th March, 1938 is Ex. 2 on the record. It was duly proved by the evidence of Devi Prasad, P. W. 1 who was the Patwari of the village from 1928 to 1953 and had scribed the document, and was exhibited by the trial Court. The ground on which it has been ruled out by the lower appellate court is that it is inadmissible in evidence for want of registration and insufficiency of stamp duty. On this point the learned counsel for the defendant-respondents urged that a perusal of the terms of the so-called Ijazatnama shows that it was a perpetual lease. I have read the terms of the Ijazatnama and I am unable to hold that it was a perpetual lease. At any rate the ground of inadmissibility on account of insufficiency of stamp duty could not have been raised before the lower appellate court after the document had been admitted and exhibited in evidence by the trial Court; and even if the document was not effective as permanent lease, for want of registration, or even as to that for want of signatures of the lessor and the lessee both, it could certainly be looked into for the collateral purpose of showing the permissive nature of the plaintiffs possession, over the land.
7. There is, however, formidable hurdle in the plaintiff's way. The lower appellate Court has observed that the learned Munsif held that the Ijazatnama was created for the purposes of the suit and that He agreed with the finding in view of the fact that it was not mentioned in the plaint. The learned Munsif has no doubt observed in his discussion on issue No. 1 as under:
'...... To my mind the plff. has createdthis putta deed of 1938 Ex. 2 for the purpose of the suit, although the existence of this putta deed was not necessary for the merits of this case. The flour Mill can only be accommodated in a structure of permanent nature. The license granted in respect of a land on which the licensee has made structure of permanent nature after inclining expenditure cannot be revoked and was defended in view of : AIR1954All773 which is ruling of Division Bench of our Hon'ble High Court. The ruling reported in : AIR1932All33 cited by the plff.'s counsel does not come into play as the building of flour Mill is not appurtenant to any agricultural holding. Similarly the ruling of : AIR1960Pat498 cited by the defendants cannot be accepted in view of Division ruling of our Hon'ble High Court. One Beni Prasad P. W. 1 who was Patwari of the village has however proved that the attesting witnesses have died. But as stated above, the putta Ex. 2 does not affect the merits of the plaintiff's case in view of para 12 of W. S. and the admission of D. W. 1 in his examination in chief.......'
The observation of the learned Munsif that the patta had been created for the purpose of the suit does not appear to be based on any material on the record. He seems to have proceeded on the basis that the Chakki Khana was in existence on 1st July, 1952 and the land in question was admitted by D. W. 1 to be appurtenant to the Chakki Khana who was the second defendant and manager of defendant No. 1. To say that the finding of the learned Munsif is justified on the ground that Ijazatnama was not mentioned in the plaint, is also incorrect. In Para 1 of the plaint it was clearly pleaded that the plaintiff was the owner in possession of the building, which was constructed 27-28 years ago, and also of the land appurtenant thereto. This fact having been denied in the written statement by saying that Mast Rani had obtained the land 27-28 years ago from the zamindar and constructed a Chakki thereon, the plaintiff filed a replication clearly pleading that the source of the title pleaded in the plaint was the Ijazatnama dated 5th March, 1938, and filed the same along with the replication together with copies of entries of the account books. The Ijazatnama was duly proved by the scribe who happened to be the patwari of the village at the relevant time. The veracity of that witness could not be shaken by cross-examination. In this context the observation of the lower appellate court that plot No. 117 was never used as Rastaam does not appear to be correct. The observation of the lower appellate court that the said statement of the witness was incorrect in view of the khasra extracts for the years 1361-1366 Fasli Exs. A-4 to A-9, and Akar Patra 41, Ex:. 13, is also incorrect. It is undisputed that the land was at one time entered as Rasta and it appears that subsequent entries in the revenue records including Akar Patra 41, prepared by the consolidation authorities have Just followed the old entries. These entries only established that the land Was not included in the holding of a tenant before the abolition of zamindari or of any tenure-holder after the abolition of the zamindari. They are no evidence of the fact whether the land was actually being used as a rasta or not. Moreover, the last clause of the Ijazatnama itself fully explains the position. The last clause of the Ijazatnama reads:
'Lekin yeh mukarra sharat hai ki rasta am kisi bhi suratmen band nahin ho sakati hai. Rasta Band karne ka jurm kashatkaran par lagu hoga.'
This clause shows that the plot of land on which the zamindars permitted the plaintiff's predecessors-in-interest to build the Chakki Khana was in part at least, a path-way. The map on the record shows that the plot is rather broad at the point where the Chakki Khana is situate, and by the side of the Chakki Khana there is sufficient land on which the right of way could be exercised. The revenue entries showing the land of plot No. 117 to be a rasta dp not, therefore, detract from the fact that the plaintiff's pre-decessor-in-interest was permitted to build a Chakki Khana at the place where it stands. It is nobody's case that the Chakki Khanna had not been in existence at that place. Indeed it is the defendants' own case that the Chakki Khana had been in existence at that place for the last 27-28 years and the land to which the dispute directly relates is appurtenant to the Chakki Khana. In this state of pleadings and the evidence the lower appellate court clearly misdirected itself in law in holding that the Chakki Khana did not belong to the plaintiff.
8. The lower appellate court has again misdirected itself in finding that the land in dispute was not appurtenant to the Chakki Khana because it was not the plaintiff's sehan and because the plaintiff did not establish that he had been using it in the past. According to the lower appellate court the flour mill worked upto 1956-57, but it observed that the parking of the carts etc. or the spreading of the paddy an the land would not make the land appurtenant to the Chakki Khana. It may here be observed that the learned Munsif had relied on the statement of D. W. 1 Sri Baijnath, who is the second defendant and also the Manager of the 1st defendant, that the land in dispute was the sehan of the Chakki Khanna. Referring to that statement the lower appellate court has observed that the witness stated in the very same breath that the carts were not parked on the land, nor was paddy spread thereon, and that, therefore, reading his statement as a whole it could not be said that the witness admitted the possession of the plaintiff either over the Chakki Khana or the disputed land. That may be so. but the fact remains that he did admit that the land in dispute was the sehan, or in other words appurtenant to the Chakki Khanna. Once it is found that the Chakki Khana was constructed by the plaintiff's predecessors-in-interest and had been in existence since before the abolition of the zamindari and was possessed by the plaintiff when the zamindari was abolished on 1-7-1952 it cannot be disputed that the land appurtenant to the Chakki Khana, would be deemed to be settled with the plaintiff. That being so, it was not necessary for the plaintiff to prove continuous use of the land for retaining his title thereto. The plaintiff's title to the Chakki Khana and the land being proved and the suit having been filed in 1965 after the enforcement of the Limitation Act, 1963, Article 65 thereof would govern the matter, which lays down that the limitation for a suit for possession of immovable property or any interest therein based on title, is 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. It, therefore, appears that the lower appellate court again misdirected itself in holding that the land in dispute did not belong to the plaintiff as he had not proved his use of the same for more than 12 years. The defendants' acts amounting to dispossession of the plaintiff, or of trespass on the plaintiff's land, were according to the plaintiff's case very recent when the suit was filed although the defendants did allege adverse possession for over 12 years. The lower appellate court has not recorded any such finding in their favour, although it has held that the defendants were in possession when the suit was filed, suggesting thereby that the possession was recent.
9. In the result, the appeal must succeed and the judgment and the decree of the lower appellate court must be set aside. But the question still remains whether the constructions made by the defendants should be ordered to be demolished.
10. From the materials on the record it is apparent that although the plaintiff may be the Owner of the land in dispute, as the land appurtenant to the Chakki Khana yet he was making no use of it for the last so many years. The first defendant, on the other hand, is an educational institution and it appears from the plaint that the wall BC in dispute and the foundations of the walls CR ME and GF were, the walls of some rooms of which the said defendant had started construction. The plaintiff will suffer no irreparable loss even if he has to part with the land shaded red out of the land appurtenant to his Chakki Khana. As to the Hauz 'Z' at the back of the Chakki Khana he could have access to the same through Chakki Khana itself by opening door or some similar opening in the back wall. It, therefore, appears to be a fit case where instead of ordering demolition of the constructions complained of, the plaintiff may be permitted to claim damages by an amendment of the plaint under the proviso to Sub-section (2) of Section 40 of the Specific Relief Act.
11. In the result the appeal succeeds and is allowed. The judgment and decree of the lower appellate Court, and the decree of the trial court are set aside. The suit giving rise to the present appeal shall stand remanded to the trial court with the direction that it shall permit the plaintiff to amend his plaint for claiming damages in substitution of the relief for demolition; and after allowing the defendants opportunity to file an additional written statement, and hearing such evidence as may be led by the parties on the quantum of damages, to decree the suit for recovery of such plaintiff. It is made clear that in view of the refusal of the relief for demolition, the decree for possession shall be limited to the area of the open land other than that occupied by the constructions made by the defendants. In these circumstances I would direct the parties to bear their own costs throughout so far.