1. This is a second appeal on behalf of a plaintiff whose suit for demolition of certain constructions by the defendants has been dismissed by the lower appellate Court. The plaintiff is a zamindar of the whole village of Chargawan in Gorakhpur District and he brought a suit for demolition of certain constructions. The Munsif decreed demolition only of constructions marked E and the lower appellate Court decreed demolition of constructions marked B and D. The present second appeal is in regard to four constructions: A, a Saiban which was found by the lower appellate Court to be old, that is more than 12 years old. It is clear that the plaintiff cannot get a decree for the removal of A. Reference was made by the Learned Counsel for the appellant to a ruling. Jai Kishun v. Moti Chand (1906) 3 A.L.J. 627. In that case the lower appellate Court held as a fact that the possession of the defendant was not adverse and therefore that possession for more than 12 years would, not give the defendant title by adverse possession. In the present case the finding of fact is the opposite that the possession of the defendant was adverse. The defendant therefore; has acquired title by adverse possession.
2. The next construction is C, a charan or cattle-shed which is attached to the house of the defendants, and G a Kolhu or a place for the grinding of suglar cane and H a Golaur or fireplace for boiling sugarcane juice into gur. These two constructions G and H are close to the house of the defendants. The lower appellate Court has found that these three constructions C, G and H are more than 12 years old, and that they are necessary for agricultural purposes. The passage in the judgment is as follows:
But G is the oharan for cattle while G and H are Kolhu and Gulaur and these are necessary for agricultural purposes. The defendants could not keep the cattle, the Kolhu and Gulaur inside their house and these must have been on the land in front of the defendants' house. Moreover the Kolhu and Gulaur are only put up temporarily when sugarcane crop is ready. I therefore hold that the plaintiff was entitled to get the constructions B and D demolished and not G, G and H and also A which is more than 12 years old.
3. In second appeal the argument was made that no ruling was shown on the strength of which the legal doctrine laid down by the lower appellate Court could be based, and further if these constructions were necessary for agricultural purposes, then it should have been shown on behalf of the defendants that these constructions could only be made in this particular place and it was suggested that they might have been made in the field of the defendants in which the defendants are the, tenants of the plaintiff. A suggestion is made that an issue should be remitted on this point as to whether the constructions could have been made elsewhere. I find however that in the written statement in para. 8 of the additional pleas the defendants pleaded:
They are very necessary for keeping the cattle of these defendants, for carrying on cultivation, and for storing the husbandry implements.
4. The Court of first instance considered this point and under issues 1 Rind 2 the Munsif found:
All these constructions are appurtenant to an agricultural calling and are necessary for that purpose.
5. The plaintiff brought an appeal, but in his appeal he did not raise the question that these constructions might have been made in the agricultural field or in any other place. Nor has this point been taken in the grounds, of second appeal to this Court. I do not think that such a point can now be raised orally for the first time in second appeal as the point would require additional evidence to be taken.
6. On the general question of law there is provision in Section 13, Easements Act, for an easement, of necessity. In Sub-clause (a) it is provided that where one person transfers immovable property to another if an easement in other immovable property of the transferor is necessary for enjoying the subject of the transfer, the transferee shall be entitled to such easement. In the present case para. 2 of the plaint states that the defendants are tenants in mouza Chargawan, in which the plaintiff is a zamindar. The plaintiff therefore has transferred certain tenancy plots to the defendants for agricultural purposes. The section applies therefore in this way that for the enjoyment of the agricultural plots the possession of which has been transferred by the plaintiff to the defendants, it is necessary for the defendants to enjoy certain easements in the land of the village site which belongs to the plaintiff. The easements in the question are for agricultural purposes as the defendants are agricultural tenants. The Courts below have found as a finding of fact that these easemerits are necessary for the agricultural purposes of this tenancy. Under Section 13, Easements Act, the defendants have therefore the right in question. It is true that the rulings on which the lower appellate Court has relied do not exactly apply to the present circumstances. Learned Counsel for the appellant desired to rely on Rati Singh v. Kunwar Damodar Lal : AIR1931All129 . That ruling dealt with a case where a tenant desired to build a residential house on a piece of ground on which a temporary chhappar had formerly stood and it was held that he had not got a right to do so as the chhappar in question had not been in existence for more than 12 years. That question had nothing to do with the present case which is concerned with agricultural easements. No authority had been shown in favour of the appellant that agricultural tenants would not have the casements in question. Accordingly I see no reason to interfere with the judgment of the Court below and I dismiss this second appeal with costs.
7. Permission to appeal in Letters Patent is granted.