1. This Letters Patent appeal arises out of a suit brought by a Zamindar Lambardar against an agricultural tenant. The ease for the plaintiff was that the defendant was only an agricultural tenant to whom a right to reside in a house had also been given together with the right to cultivate his land, that the defendant had commenced to pull down the old building which was kachcha and to re-construct it as a pucca building, that he had no legal right to do so; hence the suit for an injunction restraining the defendant from continuing the same, and he also sought for demolition of so much of the building as had already been constructed pucca.
2. The Court of first instance distinctly found that the defendant's predecessor entitle had come to the village and taken land as a tenant and had been allotted the site of the present building for the purpose of erecting a dwelling-house thereon in which to live while he cultivated the land. Even on the basis of this finding, however, it held that the defendant had no right to reconstruct the house and make it pucca. It, therefore, granted an injunction restraining him from continuing with the construction but refused to order the demolition of the building which had already been erected. The defendant-tenant appealed and the lower Appellate Court dismissed the appeal. The plaintiff filed cross objections, urging that he was entitled to the demolition of the building. The cross-objections were disallowed. The defendant appealed to this Court and a learned Judge of this Court dismissed his appeal, holding that he could not go behind the finding of fast. He allowed the cross-objections filed by the plaintiff, thereby granting demolition of the construction which had already been erected.
3. The lower Appellate Court wrote a some-what confused judgment. It stated that the Court of first instance had found that either the house or the site had been granted to the predecessor-in-title of the defendant. It then went on to say that the finding of the first Court was correct. As a matter of fact the finding of the first Court is, as we have already stated, that the site was granted to the predecessor-in title of the defendant for the purposes of building. We, therefore, must accept that as the actual fact found. In fact in the case there was only one witness examined on the point, an old man of 73 years of age, who stated in his examination-in-chief - that the house had been given to the defendant's predecessor-in-title. In cross-examination, however, he clearly admitted that it was the site only that had been granted and not the house. It is, therefore, patent that when the predecessor in title of the defendant settled in this village as a tenant he was granted a site in the abadi for the purposes of building a house. On that site he clearly built a house of kachcha construction. It is this house which he is now rebuilding and making pucca.
4. The sole question is one of his legal right to make this alteration. The defendant clearly is only a licensee. The plaintiff therefore, has to prove that the defendant has overstepped the right granted to him by the licence and that in building the house pucca he was doing an Act for which he had no authority. No attempt whatsoever has been made to prove the terms of the original grant. All that we find proved before us is that a grant was made, i.e., a licence was given for the purposes of building, and there is nothing to show that the licensee was restricted as to the method in which he was to construct the house. The bare fact that in the beginning he made the house kachcha is not a sufficient reason for holding that the licence granted was only one for building kachcha house. In all probability the quality of the house to be built was never then taken into consideration at all and in the ordinary way permission was given to build a dwelling house without any restriction. In any case the burden was upon the plaintiff to prove that the defendant was overstepping the boundaries of the license; and be has completely failed to do so. On these facts the plaintiff was, therefore, not entitled to the decree which was granted to him and we are forced to allow this appeal. The appeal is, therefore, allowed, the decrees of the Court below and of this Court are set aside and the plaintiff's suit will stand dismissed with costs in all Courts.