1. This is a plaintiff's appeal arising out of a suit for recovery of possession of land comprising 5 dhurs by demolition of a wall 20 cubits in circumference and 5 cubits in height. The plaintiff's case was that the defendants without the permission of the zamindar had started constructing a gola (turret) 20 cubits in circumference and 5 cubits in height on the plaintiff's land, but that the wall had been completed and that it had not yet been covered with thatch. The defence was that the plaintiff was never in possession of this plot, and the claim was barred by time. In para. 7 of the written statement it was further pleaded that the defendants used to build or repair such a gola for storing chaff every year when it was damaged by rain or flood. The Court of first instance found that the construction was a new one and was on Plot No. 3 of which the plaintiff was the owner. It found against the defendants on the question of limitation and the question of estoppel, which points were not argued before it. On appeal the learned District Judge has dismissed the suit. He has not set aside the finding of the First Court that the plaintiff is the owner of the plot; nor has he set aside the finding that the claim is not barred by limitation and the defendants are in adverse possession of the site. He has nowhere suggested that the gola in dispute is now new. He has said nothing about the defendants' plea that in previous years they used to have such a gola on this plot and used to repair it year after year. The learned Judge has found that the piece of land in dispute has been 'in the use and occupation of the defendants' as a sort of a seconds courtyard appertaining to their house. Although the learned Judge unfortunately has not stated clearly that the use and occupation has been for a very long number of years, I take it that when he thought that it was a sort of a courtyard appertaining to the defendants' house he meant to find that the defendants have been occupying it for a very long time. The learned Judge has however thought that because the land has been in the use and occupation of the defendants, the latter are entitled to build upon it.
2. It is true that if an open piece of land lying close to a tenant's house has been used by him for his domestic or agricultural purposes, there may be a presumption that his occupation of the plot is a part of his original contract of tenancy and that he is entitled to its user so long as he is not turned out of the village; but the user must be confined to the way in which it has been exercised in the past for the grant of which alone there can be a presumption. The tenant is a licensee of this plot for the purpose for which he has been using it. He would have no right to alter its user and utilize it for a different purpose altogether: vide Basa Mal v. Ghayas-ud-din (1904) 27 All 356 and Jagannath v. Gurdiyal Singh (1911) 10 IC 284. Nor would a tenant be entitled to make constructions on an open site when he has been allowed to use the site for tying cattle or storing heaps of cowdung cakes. From the pleadings I gather that the construction complained of is a sort of a kachcha building which will ultimately be covered with thatch and in which chaff would be kept and preserved. If the defendants have never before made any construction of this kind on the land in question, in my opinion, they would not against the will of the zamindar be entitled to do so. It would be putting the land to a slightly different use and would be erecting constructions on it which never existed before and for which there is no presumption that the zamindar ever granted permission. It is true that a kachcha building and one of small value may be removed at any time, but this would not deprive the zamindar of his right to object to its being constructed. If once a kachcha building is allowed to be built there would be nothing to prevent the tenant from gradually extending it or raising its height as it is washed away by flood year after year.
3. On the other hand, it is possible that the defendants have been utilizing this land in past years for this purpose. Their own case was that they used to have such a gola on this land year after year and when washed away or damaged by rain or flood they used to repair it. The learned Judge has not said a word about this defence. If it were established that the defendants have had golas over this plot of land in previous years, there would be a justifiable presumption that the occupation of this land was for this purpose also.
4. I accordingly send down the following issue to the lower appellate Court for a finding: Have the defendants had similar golas in previous years over the plot of land in dispute? No fresh evidence will be allowed. The usual ten days are allowed for filing objections.