Niamat Ullah, J.
1. This is a plaintiff's appeal in a suit for possession of a house. Both the lower Courts dismissed it, and the plaintiff has preferred the present second appeal. The house in dispute lies in village Hura, district Shahjahanpur. The plaintiff's father was a 'patwari' of village Hura, and had also an occupancy holding in that village. The present case relates to his residential house. The plaintiff himself has been a patwari in a village in the adjoining district of Kheri. The house was in a dilapidated condition for sometime. One 'sahdari' was, however, in existence. It fell down in July 1932. The plaintiff's case is that he attempted to rebuild the house in Pus following, i.e. December 1932, but the defendants, who are the zamindars of the village, prevented him from doing so. He then brought the suit which has given rise to this appeal on 9th January 1933. The defence was that the plaintiff was the occupier of the house only as a 'riaya' and that he abandoned it; the house fell into ruins, and the defendants, who are the zamindars of the village, took possession of the site, as they were entitled to do. The principal question, which emerged from the pleadings, was whether the plaintiff abandoned the house and allowed it to fall into ruins, so as to entitle the defendants (the zamindars) to resume possession of the site.
2. The learned Subordinate Judge found that the major part of the house had fallen down about 10 or 11 years before the suit, except for one 'sahdari,' which remained standing till Asarh (July) 1932, when the 'sahdari' also fell down, and that the plaintiff did not rebuild the house. The learned Judge held that, in those circumstances, the site should be deemed to have been abandoned by the plaintiff and the defendants (the zamindars) were entitled to take possession of it.
3. It is contended on behalf of the defendant-respondents that this is a finding of fact 'which should be taken as conclusive in second appeal. The question whether, in given circumstances, the occupier of a house should be deemed to have abandoned it depends upon the inference of the occupier's intention from the proved facts of a particular case, and is not necessarily one of fact; but assuming that, in this case, the finding is one of fact, I think it is vitiated by a disregard of an important piece of evidence afforded by a decree inter partes. In 1923 the plaintiff sued the defendants for recovery of possession of this very site, which had been taken possession of by the latter apparently on the ground that the house had fallen down and the plaintiff had abandoned it. The sahdari' was the only remnant of the house. The relief, which the plaintiff claimed, was recovery of possession of the house and injunction restraining the defendants from interfering with the plaintiff's house and directing them to remove their ghura' and certain pegs, which they had fixed. The only paper relating to that litigation which is on the file is the decree. It gives the substance of the plaintiff's claim and awards to him possession of the house shown by the letter B in the amin's map made part of the decree. It also grants a mandatory injunction directing the defendants to remove their ghura, 'kanda' and the pegs. The plan clearly shows that the condition of the house in 1923 was the same as it was before Asarh 1932, when the 'sahdari' fell down. Rightly or wrongly, the Court held between the parties that the existence of the 'sahdari', coupled with the determination of the plaintiff to retain possession of the house, precluded the inference of abandonment on his part. So long as that state of things existed, no occasion could arise, in view of the decree, for the defendants to take possession of the site. When the 'sahdari' fell down in July 1932, the defendants thought that, in the altered circumstances, they were justified in doing what they had been held not to be entitled to do in 1923.
4. According to the plaint in this case, they took possession of the house on 26th December 1932. The plaintiff lost no-time in instituting the present suit, which was brought on 9th January 1933. The mere fact that a riaya's house completely falls down does not justify the proprietor to take possession of the site, unless the circumstances afford a reasonable ground for believing that the riaya had abandoned all intention to rebuild it. In the present case, the defendants were not justified in assuming that the plaintiff had abandoned all intention of rebuilding the house, in view of the past history and the determination of the plaintiff to maintain his possession. The defendants should have done something to ascertain the plaintiff's intention, if they were themselves actuated by good faith. In cases of doubt the landlord might well give notice to the occupier of a ruined house requiring the latter to rebuild the house and intimating that in case the house was not rebuilt within a reasonable time, he (the landlord) would treat the site as abandoned and would resume possession thereof. The plaintiff's attitude as regards his house had been made clear in the earlier litigation, and nothing happened during the period which followed to justify that he had changed his mind. The house was his ancestral residence, but he had to live in another village, because the rules of his service required that he should reside within his circle so long as he was employed as a patwari. According to the plaintiff's evidence, his family lived in the house until his brother died 10 or 11 years before the suit. The plaintiff has been holding his present post for the last 25 or 26 years. After his brother's death his family removed to the village in which he himself had to reside. His position appears to have been one of difficulty. On the one hand, he did not desire to sever his connexion with the village Hura, where he had an occupancy holding and house. On the other hand, he could not afford to maintain his house-presumably a mud house-in good repairs, which would cost him something every year. In all the circumstances of the case, I do not think that the plaintiff intended to abandon the house. As already stated, the mere fact that the house completely fell down does not necessarily lead to the conclusion that his right to rebuild terminated. The position might have been different if a long time had elapsed after the Sahdari fell down so as to warrant the belief that he had no intention of rebuilding it. But the defendants took possession of the site not long after the rains and before the plaintiff had sufficient opportunity of rebuilding it. This view finds support from Mahadeo v. Ram Bharose 1923 All 365. In the result, I allow this appeal, set aside the decrees of the lower Courts and decree the plaintiff's suit for possession and for injunction restraining the defendants from interfering with the plaintiff's attempt to reconstruct his house. The plaintiff will have his costs in all the Courts. Leave to appeal under the Letters Patent is allowed.