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Azhar HusaIn Vs. Mansab - Court Judgment

LegalCrystal Citation
SubjectProperty ;Civil
CourtAllahabad
Decided On
Reported inAIR1940All324
AppellantAzhar Husain
RespondentMansab
Excerpt:
- - such vacant land is appurtenant to the house as sahan darwaza, and i am quite clearly of opinion that a licensee who has thus built a house in pursuance of the terms of his license has a possessory interest in the land to which the license relates such as will entitle him to maintain a suit, whether against his licensor or against a third party......of land and acting upon that licence, he proceeded to build the house, keeping a portion of the land vacant in order that he might use it as his sahan darwaza; and, as i have already said, it has not been suggested that the site of his house and this piece of vacant land together exceed the 7 biswas, 8 dhurs in respect to which he was granted a license. it is only reasonable that a person who builds a house in a village should have the use of as much vacant land outside his house as is necessary for the proper enjoyment of his house. it is not suggested in the present case that the land so reserved is more than necessary for this purpose. such vacant land is appurtenant to the house as sahan darwaza, and i am quite clearly of opinion that a licensee who has thus built a house in.....
Judgment:

Collister, J.

1. This is a plaintiff's second appeal. He sued for a perpetual injunction in respect to a piece of land; and in the alternative he prayed for possession thereof. It was alleged in the plaint that the plaintiff had obtained this plot from one Sheikh Hamiduddin, a proprietor of the village, whose chhaoni stood on the plot, that the plaintiff built a house on the site of the aforesaid chhaoni and that he was using the vacant space to the east of his house as his sahan-darwaza. It was further alleged that the defendant had interfered when the plaintiff wanted to enclose the sahan with a wall and that he had also changed the direction of a drain, so that the water fell on to this plot. The suit was contested on various grounds. A referee was appointed, and in pursuance of his statement the trial Court decreed the suit for an injunction in respect to a specified area of this plot. The learned Judge of the lower Appellate Court, relying upon the cases in Mt. Manbi v. Kodu and Manbahal v. Ram Ghulam Pande : AIR1927All633 , has reversed the decree and has dismissed the suit.

2. The defendant is a co-transferee from Sheikh Hamiduddin; and it is a matter of admission that under an ijazatnama dated 3rd January 1918 Sheikh Hamiduddin granted a license to the plaintiff to build a house on an area of 6 biswas, 8 dhurs in sub-plot No. 77 of the abadi and that, acting upon that license, the plaintiff has built a house thereon. It is not suggested before me that the area of the site of the plaintiff's house plus the area of the vacant space which was reported by the commissioner and found by the trial Court to be his sahan darwaza exceed 7 biswas, 8 dhurs. The only question for determination is whether the license which was granted to the plaintiff by the defendant's predecessor-in-interest is revocable in respect to such portion of this area as is not covered by the house. Learned counsel for the defendant-respondent relies on two authorities. The first is the case in Land Mortgage Bank of India v. Moti (1886) 8 All 69. That was a suit in which a zamindar had sought a declaration of his right to build a house on a piece of waste land. The defendants were tenants of the village and they pleaded that they had built wells and water-courses on this piece of land and also claimed a right to use it as a threshing-floor and for stacking cow-dung. It was held by a bench of this Court that they were licensees of the plaintiff, and the learned Judges said:

In this case their right to the wells which they have made cannot be interfered with; but the zamindar can revoke the license as to the other use claimed of the land.

3. The next authority to which I am referred by learned Counsel for the defendant-respondent is the single Judge decision in Manbahal v. Ram Ghulam Pande : AIR1927All633 , which has been relied upon by the learned Judge of the lower Appellate Court. That was a suit between two rival licensees, each of whom had been given permission to build a house on a certain plot. The defendant had obtained such permission from a cosharer having a one-anna share in the village, whereas the plaintiff had obtained permission from the remaining cosharers, representing 15 annas; but the defendant got in first and began to build his house. It was held by a learned Judge of this Court that since the plaintiff had no interest in the site, he was not competent to maintain an action in his own name for possession thereof. It is, I think, obvious that the facts of that case are entirely different from the facts of the case which is now under appeal.

4. The decision which I have just referred to has been distinguished by a Bench of this Court in Kanta Tewari v. Sheo Narain Lal : AIR1935All123 . The suit out of which that appeal arose was a suit for possession of a piece of land, for removal of certain constructions which had been placed upon it by the defendants and for damages and an injunction. The findings of the lower Appellate Court were that the land in dispute had been used by the plaintiffs as their sahan darwaza and that they had possession over it by means of a chabutra and cattle troughs. There is nothing in the judgment to indicate whether the defendants were zamindars or what their capacity was; but it was held that the plaintiffs had sufficient possessory title to maintain the action against the defendants. It seems to me that in the case with which I am now dealing the plaintiff's position is even stronger. He was given a license to build a house on a piece of land and acting upon that licence, he proceeded to build the house, keeping a portion of the land vacant in order that he might use it as his sahan darwaza; and, as I have already said, it has not been suggested that the site of his house and this piece of vacant land together exceed the 7 biswas, 8 dhurs in respect to which he was granted a license. It is only reasonable that a person who builds a house in a village should have the use of as much vacant land outside his house as is necessary for the proper enjoyment of his house. It is not suggested in the present case that the land so reserved is more than necessary for this purpose. Such vacant land is appurtenant to the house as sahan darwaza, and I am quite clearly of opinion that a licensee who has thus built a house in pursuance of the terms of his license has a possessory interest in the land to which the license relates such as will entitle him to maintain a suit, whether against his licensor or against a third party. As against the licensor the license is unrevocable under Section 60(b), Easements Act (Act 5 of 1882). For the reasons given above, I allow this appeal with costs and set aside the decree of the lower Appellate Court and restore the decree of the trial Court. Permission to appeal under the Letters Patent is refused.


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