1. We have before us two cross appeals by the plaintiff and defendants respectively against a judgment and decree passed in appeal by the learned District Judge of Allahabad. The suit which has given rise to these appeals was instituted for the recovery of some land with a house upon it. The allegation was that this land belonged to one Mata Bakhsh and was inherited at his death by his daughter, Ram Dei, who had a life estate. It was said that Ram Dei had died and that the plaintiff, Piary Lal, was the nearest reversioner. Piarey Lal set himself up as the son of Kallu who was the brother of Mata Bakhsh. The first question which arose was whether Kallu and Mata Bakhsh were brothers. The defendants had alleged that Mata Bakhsh was the son of Bansi whose widow had married Hanuman, the father of Kallu. The learned Judge of the lower appellate Court did not believe this story. He believed that Mata Bakhsh and Kallu were both sons of a man called Sitti whose widow married Hanuman. Learned Counsel for the. defendants-appellants argues that this finding was not justified because it was contrary to the pleadings of the plaintiff himself who alleged that Kallu and Mata Bakhsh were both the sons of Hanuman. It seems to us that there is no force in this contention. The essential allegation was that Mata Bakhsh and Kallu were brothers. It did not matter whether their father's name was Hanuman, Sitti or Bansi. The fact that the plaintiff alleged that Kallu and Mata Bakhsh were the sons of Hanuman may have been one reason for disbelieving his story, but we are not entitled to set aside a finding of fact at which the learned Judge has arrived and we are not justified in saying that he should not have believed the evidence which was produced before him. He relied upon the statements of two witnesses one of whom was the husband of another daughter of Mata Bakhsh who had died before him. The learned Judge had also some documents before him. The copies had been produced in the Court below, and the learned Judge allowed the originals to be summoned so as to satisfy himself whether the name of Mata Bakhsh's father should be read as Bansi or Sitti. It is urged that this evidence should not have been produced in the appellate Court, but an appellate Court is always entitled to allow the production of evidence and it cannot be said that the defendants-appellants were prejudiced in any way. On the finding of fact that Kallu and Mata Bakhsh were brothers, the case of the plaintiff was bound to succeed.
2. The other appeal by the plaintiff has been instituted because the learned Judge has given him a decree for the land but has held that he was not entitled to immediate possession because the defendants or some of them were entitled to remain in the house. We may say that the finding is that Mt. Ram Dei rebuilt the house at some expense to herself and that she made a will that it should pass after her death to her grandson, Badri Prasad, who is one of the defendants. The learned Judge seems to have thought that Badri Prasad was entitled to remain in possession of the house and that the plaintiff was entitled only to receive ground rent. We are satisfied that no person can oust the real owner of land by building upon that land without his permission. Learned Counsel for the defendants is not able to assert that his client, Badri Prasad, is entitled to remain in possession, but he asks us to pass a decree enabling Badri Prasad to remove the materials of the house. It seems to us that Mt. Ram Dei was not entitled to leave the house to her own nominee after her death. The most she could have done was to leave the materials which she had placed upon the land and it would be impossible at this stage for us to distinguish between those materials and the materials originally used for building the previous house. We could not give Badri Prasad a decree without requiring him to restore that original house to the condition in which it was when Mt. Ram Dei rebuilt it. That again would be an impossible condition and it would be useless to pass a decree which could never be properly executed. The questions involved in the request of learned Counsel for the defendants were not raised and decided in the Courts below. We are satisfied that the plaintiff's appeal must succeed. We dismiss the defendants' appeal with costs and allow the plaintiff's appeal. We direct that a decree should be passed giving the plaintiff unconditional possession over the land. The plaintiff will get his costs in all three Courts from the defendants.