1. This suit relates to certain land in Kamalganj. The plaintiffs are the zemindars of the village. Nanhe and Balli bhatiaras or inn-keepers are residents of the village, who are occupants or owners of certain shops or buildings in the sarai. The dispute does not relate to the shops or buildings but to plots of open land and land covered by a chabutara, which have been recently sold and which the other defendants now intend to build upon. The plaintiffs' case is that they are the zemindars of the village, that as such they are the owners of the land, that the defendants do not own the land in dispute, that they have no right to sell and that the transferees have no right to build upon the land without the plaintiffs' consent. The Court of first instance dismissed the suit. The learned Judge in appeal has decreed it. The question is whether the findings at which that Court has arrived can be disturbed by us.
2. There was previously a suit about lands in this very village which is reported as Incha Ram v. Bande Ali Khan 11 Ind. Cas. 52 : 8 A. L. J. 877 : 33 A. 757. That case did not decide that Kamalganj was an agricultural village. But at one time or other there can be no doubt that it was an agricultural village. What in that case was held to be the result of the finding was that 'Kamalganj was once an agricultural village and is still inhabited by a number of agriculturists.' The Court below after a consideration of the whole evidence has arrived at the conclusion that the zemindars are in possession of the site in dispute and the defendants have failed to prove their adverse possession for more than twenty years. In ordinary agricultural villages zemindars are owners of the entire village land, but as the village develops and becomes bigger, it is possible that the holders of land in the village may obtain proprietary rights either by grant from the zemindars or by adverse possession. The mere fact that a village has become big enough to be called a town does not by itself affect or alter the zemindars' rights, but it is by the process of transfer, grant or adverse possession that the various owners acquire their rights. The question in this case is whether, so far as the land in dispute is concerned, the defendants have acquired any rights. They may be owners of the land covered by their shops or houses. That is not a point of controversy before us. The question is whether they are owners of the lands adjacent to and near their houses which are now in suit No grant or transfer by the zemindars is proved in this case and the only way in which the defendants can acquire ownership is by adverse possession. The Court below after a careful consideration of the entire evidence has held that no adverse possession has been proved. A zemindar very often does allow tenants to use the land in his village in many ways beneficial to the tenants but which are not injurious to him. They are mere acts of grace and favour. And if these acts by themselves are to be regarded as acts indicating adverse possession, there can be no doubt that the zemindars will soon think of putting an end to all such acts of grace and favour. As has been said by Lord Justice Bowen in Blount v. Layard (1891) 2 Ch. 681n at p.691 n. 'Nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many persons besides the owners, under the fear that their good nature may be misunderstood'. It may be that in this case the zemindars allowed the occupants of shops and the sarai to use the land in front, but that alone cannot confer any rights on the owners of the shops nor constitute a case of adverse possession, as held by the Bombay High Court in Framji Cursetji v. Goculdas Madhowji 16 B. 338 : 8 Ind. Dec. (N.S.) 703 The finding of the lower Court, therefore, seems to be conclusive in the case. Dr. Surendro Nath however, has urged that his client produced a number of sale-deeds and other documents of transfer, which the Court below has held to be not legally proved and which according to the view taken by that Court did not affect the question in the case. Many of these deeds of transfer are more than thirty years old and if produced from proper custody might be admitted without proof under Section 90 of the Evidence Act. From some of the documents laid before us it would appear that they deal only with the land covered by the house or shop and do not deal with the land near or adjacent to it as in this case. They would, therefore, not affect the question in issue in this case. We think that the appeal is concluded by the findings of fact of the Court below, which we in second appeal have no power to set aside. The appeal is dismissed with costs, which in this Court will include Counsel's fee on the higher scale.