1. This is an appeal by Ram Narain Singh and others, defendants, and it arises out of a suit brought by Shripat Singh and others, plaintiffs, for possession of a strip of land and for removal of certain constructions built on the same. Their allegation was that this strip of land belonged originally to one Deo Saran who utilised it as a sehan darwaza and that after Deo Saran's death long ago the plaintiffs entered into possession of the same and the defendants started making certain constructions some time prior to the year 1925 when the plaintiffs instituted the suit but subsequently withdrew it and now the defendants have again made certain new constructions and the plaintiffs want their demolition. The defence was that the defendants were the heirs of Deo Saran and were in possession of the plot of land mentioned in the plaint ever since the death of Deo Saran. Before I proceed to discuss the various points that arise in the case, and the arguments that have been advanced before me, it is necessary to clear the ground a little. The trial Court observed while deciding issue 2 that:
Plaintiffs pairokar Shripat Singh, P.W. 2, admitted that the defendants had been adjudicated as heirs of Deo Saran in preference to the plaintiffs but not against one Thakur Dayal.... The matter therefore cannot be said to have been finally settled, but this much is at least certain that the defendants have been in possession of the site since a long time.
2. The lower Appellate Court while deciding point No. 3 observed, 'The mere fact that they (the defendants) are the heirs of Deo Saran Singh....' From this it is clear that the Courts below held the view that the defendants as the heirs of Deo Saran had obtained possession of this strip of land which was used as a sehan darwaza by Deo Saran. That being so, it is clear that the defendants are also entitled to use this land as a sehan darwaza. If every other point is to be decided in favour of the plaintiffs, it is clear that on the above view of the matter the plaintiffs would not be entitled to obtain possession of this plot of land. The utmost that they can claim is that the plot of land should be restored to its original condition as a sehan darwaza and that the defendants can enjoy it only as a sehan darwaza. Courts below over and above granting demolition of certain constructions gave a decree for possession to the plaintiffs. That decree according to my judgment is obviously wrong. The plain, tiffs can in no event obtain possession of the site when the defendants have been in possession of the same from a long time, that is to say ever since the death of Deo Saran which took place more than 12 years ago.
3. While stating the allegations of the plaintiffs in an earlier portion of the judgment, I mentioned that the plaintiffs referred to a previous litigation of 1925. In that litigation also, the plaintiffs complained that the defendants had made certain constructions. A commissioner was appointed who submitted a report and made a plan. The report is paper No. 65-0 of the record and the map is paper No. 66-C of the record. The latter document has now been placed just after the decree. Those two documents clearly show that the defendants had even in 1925, and possibly two years before it, on this very plot of land, a gullor, a ghur and a few charnis. An amin was deputed in the present ease also to prepare a map. The former gullor is shown in the amin's map by letter A, the ghur is shown by the letter I'1 and the charnis are shown by the letter D. There is another charni shown in the amin's map by the letter E and the learned Civil Judge is of the opinion that this charni is a new one. A comparison of the map prepared by the former commissioner and the present amin satisfies me that this charni is not a new one but was in existence even at the time when the suit of 1925 was brought. I would not have interfered probably with the finding of the Court below that one of the charnis, namely at E in the amin's map, is a new one, but for the fact that from the plaint allegations it is clear that the plaintiffs themselves do not allege that any charnis have been built by the defen-dants after the former suit. They state clearly that when the former suit was instituted there was a gullor, a ghur, a few charnis and two mandhas and that after the withdrawal of the suit, the two mandhas were removed but the other constructions were allowed to remain; they nowhere allege that any new charni was built.
4. I am therefore justified in coming to the conclusion on this statement in the plaint that the present charnis were all in existence at the time of the institution of the former suit. The contention of learned Counsel for the appellants is that if certain constructions were in existence in the year 1925 and even two years before that, then the present suit that was instituted in the year 1934 is obviously barred by time having been instituted more than two years from the date of the constructions, and reliance is placed on Article 32, Lim. Act. That Article provides that a suit against a person who, having a right to use the property for specific purposes, perverts it to other purpose, is to be instituted within two years from the time when the perversion first becomes known to the person injured thereby. The defendants were entitled to use the land as a sehan darwaza and as a sehan darwaza only. More than two years ago, they perverted it to other purpose, namely by making certain constructions. If the plaintiffs were dissatisfied and wanted redress, they ought to have come within two years. I am supported in this view by the cases in Sharup Das Mondal v. Joggessur Roy Chowdhry (1899) 26 Cal 564, Lach Ram Das v. Jangi Rai (1911) 8 A.L.J. 914 and Jai Kishen v. Ram Lal (1898) 20 All 519. Courts below have held that the gullor at the letter A, the ghur at the letter F and the charnis at the letter D in the amin's map were all in existence in 1925. I have further held that the charnis at the letter E were also in existence at the time of the litigation of 1925, and the plaintiffs' suit for the demolition of these constructions is, according to the view I have taken, barred by time. Even if Article 32, Lim. Act, were not held to be applicable, the plaintiffs' suit would be barred under Article 120, Lim. Act, the only other Article which can possibly be applied to the circumstances of the case.
5. Then there remain the dalans B and C. These were in the course of constructions when the suit was instituted. The suit for the removal of these two constructions cannot be said to be barred either under Article 120 or Article 32, Lim. Act. It is, however, contended that the defendants had certain mandhas and these two dalans are also being constructed for the same use for which the mandhas were utilized. The Court below observes that a comparison of the map of the former litigation and the map in the present case shows that the two mandhas in dispute in the previous case could not by any stretch of argument be identical with the two dalans which are shown as B and C in the amin's map. I have also come to the same conclusion independently by a comparison of the two maps. It is, however, contended that the two mandhas in existence in 1925 were utilized for a particular purpose and the two dalans are also being built for the same purpose and therefore the plaintiffs cannot seek demolition of the two dalans. Reliance is placed on the case in Sarju Prasad v. Shyam Lal : AIR1934All802 . That case is clearly distinguishable on the finding of the lower Appellate Court to the effect that the disputed constructions are not appurtenant to the agricultural holding of the defendants nor are these constructions of the nature of easements of necessity. The position therefore is that some time in 1925, the defendants had certain mandhas, and if those mandhas had remained in existence for more than two years, then in my view, the plaintiffs' suit would have been barred by time, because this was a clear case of perversion of user, but those mandhas have admittedly been removed and if some appreciable time after, namely about the year 1934, the defendants are building certain dalans at a different spot, the plaintiffs are entitled to claim demolition, because the original purpose for which the strip of land could be used was only as a sehan darwaza. It is not permissible for the defendants to utilize a strip of land as a sehan darwaza by making constructions on it, because if they are permitted so to do, the result would be that what was at first a sehan darwaza would be occupied by constructions and the raiyats would be entitled to have another strip of land as a sehan darwaza and thus there would be no end to encroachment on the rights of the zamindar. It is not possible in the state of the record and on the state of the evidence to come to a definite finding that the mandhas which were in existence in 1925 were utilized for any specific purpose, but it may be taken that certain sugar manufacturing business was conducted there. The dalans have not yet been constructed and I have only the word of learned Counsel for the appellants that they are being built for the purpose of a sugar manufacture.
6. The matter might be looked from another point of view. Supposing a person has one kolhu or two kolhus upon a strip of land which he is entitled to use as his sohan darwaza and these kolhus have been in existence for more than two years, then the plaintiff zamindar's suit for the removal of the kolhus might be barred by time under Article 32, Lim. Act, but if the defendant raiyat who is entitled to use the land only as a sehan darwaza starts a small sugar mill on the land, it might well be argued that the burden is being increased and the Article applicable would not be Article 32 but Article 120, Lim. Act. Support for this view can be had from the case in Mohan v. Bishambhar Sahai (1924) 11 A.I.R. All. 450 and the plaintiff zamindar would get a larger period for his suit. As matters at present stand, I hold the view that the plaintiffs are entitled to obtain demolition of the two dalans B and G in the amin's map because these dalans were built recently, and because the defendants have perverted the use of the property to a different purpose from their original right which was to use it as a sehan darwaza and the defend, ants have further increased the burden on the site, but they are not entitled either to obtain demolition of the other constructions, namely the gullor, the ghur and the charnis, nor are they entitled to a decree for possession of the site.
7. For the reasons given above, I allow this appeal to this extent: that I modify the decrees of the Courts below by dismissing the plaintiffs' suit for possession and for demolition of the gullor, the ghur and the charnis, but grant a decree for the demolition of the two dalans B and C. The defendants have really succeeded to a great extent and I therefore direct that the plaintiffs must pay their own costs and pay half the costs of the defendants in all Courts. Leave to file an appeal by way of Letters Patent is granted.