1. This is a defendants' appeal against concurrent decrees of the Courts below decreeing the plaintiff's claim in part for the removal of certain constructions unlawfully made by the defendants and possession of the sites thereof. The plaintiff was the zamindar of the village of Dhobauli and he alleged that the defendants had built two new osaras, one to the east and one to the south of their house and further had built a new charan and certain other constructions also to the south of their house. It was the plaintiff's case that these constructions were recent; and had been made in the month of Jeth 1932. The defendants contested the suit and pleaded that osaras in question in their present form had existed at least for fourteen years and that previous to them there had been older osaras on the same sites. It was also pleaded that the charan and other constructions had been on the land for a long time and that, in any event, the land south of the house was the sehan land of the defendants upon which they could lawfully make the constructions complained of.
2. The learned Munsif decreed the plaintiff's claim with regard to all the constructions except the southern osara. With itegard to this construction, the learned Munsif was of opinion that it was old and that the plaintiff had a title to it by over 12 years' adverse possession. He held however that the other constructions were recent and that the plaintiff was entitled to demolition of the same and possession of the sites. On appeal, the learned civil Judge upheld the findings of the learned Munsif. The case first came before me on 16th March 1937 and it appeared to me that certain essential facts had not been found. I accordingly framed three issues for decision by the lower Appellate Court, namely:
(1) Whether the southern osara was built upon the defendants' sehan land' (2) Whether the eastern osara was built on the defendants' sehan land' (3) Whether the other constructions complained of or any of them were built on the defendants' sehan land.
3. The lower Appellate Court has now re-turned its findings and has held:
(1) That the southern osara was not built upon the defendants' sehan land but upon the land which was part and parcel of their own house; (2) that the eastern osara was built on the defendants' sehan land; (3) that the other constructions complained of were built on parti land and not on the defendants' sehan land.
4. As I have stated previously, the lower Appellate Court has come to the conclusion that the southern osara was over 12 years' old and consequently the plaintiff had no right whatsoever to ask for its removal. Such a finding would be sufficient to dispose of the plaintiff's claim with regard to this osara, even if it was built upon the plaintiff's sehan land. However, it appears that this osara was not built on the sehan land but upon the site of the defendants' residential house. It cannot, be disputed that the defendants were entitled to make constructions upon the site of their residential house and that being so, the claim with regard to the southern osara was rightly dismissed by both the Courts. The plaintiff's cross objection applies to this southern osara and in my view such cross-objection must fail.
5. The lower Appellate Court decreed the plaintiff's claim with regard to the eastern osara and to the other constructions and in, my view rightly. It was argued before me that if the eastern osara was built upon, the defendants' sehan land, then the plaintiff was not entitled to have it removed. The lower Appellate Court has now found as a fact that this eastern osara was built upon the defendants' sehan land and that finding cannot be challenged. Even so, I am of opinion however that the defendants had no right to erect this osara and to maintain it on their sehan land. It must be remembered that there is no question of adverse possession for the statutory period for this particular osara.
6. The rights of a riaya to construct buildings on his sehan land was considered by a Bench of this Court in Ratan Brahai v. Mt. Kishan Dei : AIR1933All288 . In that case it was held that a riaya in a village a badi is not entitled, as a matter of right and without the consent of the zamindar to construct a building on land which he was using as an outer sehan appurtenant to his house. It is to be on served that in the case before me this eastern osara was built on the outer sehan or sehan darwaza. In Ratan Brahai v. Mt. Kishan Dei : AIR1933All288 it is pointed out that a riaya holds either under a lease or under a licence, and if such lease or licence permits him to build on the other sehan, then he can do so. On the other hand, if no such permission can be inferred from the terms of the lease or licence, then the riaya cannot make any permanent constructions upon the sehan. There is no evidence in the case before me of the terms of the licence granted to the riaya to build his house. It is however contended on behalf of the appellants that the zamindar impliedly had consented to the erection of this eastern osara. It is argued that as he had permitted the defendants to build the southern osara and to maintain it without complaint for over 12 years, the permission of the zamindar to make other constructions upon the sehan land can safely be implied. In the first place, the southern osara was not built upon the sehan land at all; but on the contrary was built upon the site of the residential house. The plaintiff could not object to the building of the southern osara and that being so, no consent to build any other constructions upon the sehan land can be implied from the plaintiff's acquiescence in the building of the southern osara. Secondly, even if the southern osara was built on the sehan land, it would be difficult to infer from that that the plaintiff had impliedly permitted any further constructions upon the sehan land. A zamindar might well be prepared to allow a riaya to build one construction, whereas he would not be prepared to permit him to add to such construction or to build further ones.
7. As there is no evidence at all to suggest that the eastern osara was built with the consent, express or implied, of the plaintiff zamindar, the case in my view falls with in the principle enunciated in Ratan Brahai v. Mt. Kishan Dei : AIR1933All288 to which I have previously referred. It is however contended that there is a more recent case, Mohammada v. Harnand Lal : AIR1937All262 which lays down that a riaya may erect a con. struction like an osara upon his sehan land without the consent of the zamindar. In Mohammada v. Harnand Lal : AIR1937All262 . Niamatullah, J. held that it was not open to the zamindar to object to a riaya who was entitled to occupy a site for residential purpose, putting up a chabutra inside his courtyard and to use such for all domestic purposes including the use of it as a sitting place and for saying prayers and the like, and further that it was equally open to the riaya to allow his guests and visitors to use the chabutra in they ordinary course of daily life, for sitting down, saying prayers and the like. It is contended on behalf of the defendants that if a riaya is entitled to make a chabutra, kaohcha or pacca, inside his court-yard, then he is also entitled to erect an osara. In my view however, the case in Mohammada v. Harnand Lal : AIR1937All262 is dearly distinguishable from the present case. A chabutra, kachcha or pacca, does not very materially affect the method of uaer of sehan land. What is usually done on sehan land can practically be done as well even if a chabutra is built upon it. Erecting a chabutra in no way encloses the land but making an osara practically amounts to enclosing a part of the land or at least making the site of the osara part of the site of the residential house. Further, the chabutra in question in Mohammada v. Harnand Lal : AIR1937All262 appears to have been built inside the sehan or the court-yard which appears to suggest that the sehan was not an outer sehan but an inner sehan. In my view, different considerations would apply to an inner sehan than to an outer sehan, because the former practically forms part of the site of the residential house. In the case before me, it is clear that the sehan upon which the eastern osara was built was an outer sehan and in my view, I am clearly bound by the Bench decision in Ratan Brahai v. Mt. Kishan Dei : AIR1933All288 and I therefore hold that though the eastern osara is built on the sehan land, nevertheless the plaintiff is entitled to have it demolished.
8. The learned Civil Judge has found that the other constructions complained of were not built upon the defendants' sehan land and it had been previously held that such were new constructions. In those circumstances the defendants had no right to make these constructions and to maintain them and their demolition or removal was rightly decreed. The result therefore 'that the plaintiff has established his right to the demolition or removal on all the constructions with the exception of the southern osara. The appeal therefore fails and is dismissed with cost. As I have stated earlier, the plaintiff's claim with regard to the southern osara was rightly dismissed. Consequently the cross-objection fails and is dismissed with costs. Leave to appeal under the Letters Patent is granted.