1. This is a Letters Patent Appeal arising out of a suit brought by the zamindar against the defendant Lachman and other members of his family, for the demolition and removal of a channel which has been built by the defendant on the open piece of ground in front of his house. The defendant is a tenant in the village but the site in dispute is a part of the abadi lands and is not included in his tenancy lands. There was a further relief claimed for a perpetual injunction restraining the defendant from interfering with the plaintiff's right, or making any constructions on the land. The defence was that the site was a part of the defendant's sehan, which he had been using and over which he had been tying his cattle, and that he had a right to build upon that land. There was a further plea that the plaintiff was estopped from maintaining the suit and also that the claim was barred by limitation. All the Courts have held that the defendant has no right to build upon this land at all, but the first Court held that the plaintiff was estopped, and that the claim was barred by limitation. The lower Appellate Court, however, came to a contrary conclusion.
2. It held that the defendant was not entitled to put this building on the land in front of his house, that there was no estoppel against the plaintiff because he was absent from the village and had no personal knowledge of the construction until it was completed. The Court further held that the suit was not governed by the two years rule prescribed by Article 32, Limitation Act, but actually was a suit for proprietary possession governed by the 12 years rule of limitation or at any rate by the six years rule under Article 120. The suit was accordingly decreed. A learned Judge of this Court has affirmed that decree. He has come to the conclusion that the previous use of the land by the defendant as a sehan did not justify the defendant in making the structure in question on it. The learned Judge has further held that Article 32 is inapplicable to a case where there is a mere licence revocable at any time, as distinct from a legal right to remain in possession of the property, and has distinguished two earlier cases of this Court on the ground that in those cases the land built upon was part of the holding of the defendant tenant over which he had exclusive possession. In our opinion, the view taken by the learned Judge is perfectly sound.
3. There is no proof that the land had been granted to the tenant for building purposes or for the matter of that for any particular or specific purpose. All that we know is that there is an open piece of ground in front of the defendant's house which he has been using as a sitting place and for the purpose of tying his cattle thereon. In that sense he has treated it as a sehan in front of his house. The land, therefore, has not been in the exclusive possession of the defendant in the sense in which a lessee or an agricultural tenant is in possession of his leased property or tenancy land. The defendant is a licensee within the meaning of Section 52, Easements Act, and has been granted a right to do certain acts upon this piece of land in front of his house. In certain circumstances a user as a sitting place or for tying cattle may be absolutely necessary for the comfort or convenience of an agricultural tenant who has settled in the village, and such a right may not be revocable. But that is quite a different thing from saying that the tenant is in exclusive possession of the land almost as a lessee with the right to do what he likes upon it and even to put up a building upon the land. If such a course of action were allowed, the result would be that the tenant can build upon the land in front of his house and then use the land further away as his sehan and later on build upon that land as well and claim more land. Such a right has been denied to tenants in several cases in this Court. We may refer to the case in Ratan Barhai v. Kishen Dei : AIR1933All288 and cases mentioned therein. A tenant who has been allowed to use the land in front of his house has no right to build upon it so as to take exclusive possession of it to the ouster of the zamindar, without his consent. The learned Judge, therefore, has taken the correct view that there was no justification for the defendant to make this structure on the land without the permission of the zamindar. The finding that there was no estoppel against the plaintiff because he did not come to know of the constructions until they had been completed is a finding of fact and must be accepted as final.
4. The next question is as to the appropriate article which should apply to such a case. The learned Advocate for the defendant has urged before us that the case is governed by Article 32, Limitation Act, because it is a suit by a zamindar against the tenant, who had a right to use this land for certain specific purposes, but has perverted it to other purposes, and that accordingly the period of limitation is two years and the suit having been brought more than three years after the knowledge of these constructions, is barred by limitation. As already pointed out, this is not a case where the defendant had been in exclusive possession of this land like a tenant. In such a case it has been held by this Court in Jai Kishen v. Ram Lal 20 A 519 : AWN 1898, 135 and Lach Ram Rao v. Jangi Rai 8 ALJ 914 : 12 Ind. Cas. 108, that a suit brought by the zamindar for the removal of the perversion of the land would be governed by Article 32. In the former case a tenant of an agricultural holding had planted certain trees on his holding, and in the latter case the usufructuary mortgagee of an occupancy holding had made some structures on that holding for agricultural purposes. In both these cases the zamindar was not entitled to dispossess the defendant from the lands and his remedy exclusively was to get the perversion of the land removed. The suits brought were, therefore, suits for the prevention of the perversion of the land simply, and substantially for nothing more.
5. In the present case the defendant has built upon land belonging to the zamindar which is no part of his tenancy lands. It is part of the abadi site. By building upon it he has undoubtedly taken exclusive possession of the land to the ouster of the zamindar and everybody else, and the suit brought for the demolition of the building and the removal of the constructions is not a suit merely for the prevention of the perversion of the land, but for the assertion of the zamindar's right and for preventing the defendant from taking exclusive possession of the zamindar's land. Article 32 cannot be applicable to such a case. The question has been recently considered by a Full Bench of the Lahore High Court in Mastan Singh v. Santa Singh 14 Lah. 267 : 145 Ind. Cas. 553 : AIR 1933 Lah. 705 : 34 PLR 618 : 6 RL 113. Tek Chand, J , who delivered the principal judgment of the Full Bench, remarked at p 281 Page of 14 Lah.--[Ed.]:
The Article (Article 32) is applicable to those cases only in which the injury complained of is the perverted user of the property by the defendant, who had the right to use it for a specific purpose, and the plaintiff seeks the assistance of the Court merely to get rid of the perversion. In my opinion, it has no application where the defendant's act, though it might also have resulted in the perversion of the user from the original specified purpose, really amounted to an ouster of the plaintiff from the property in question, and the object of the suit is not to get rid of the perversion simpliciter, but to have the dispute as to title settled.
6. We are in entire agreement with this interpretation of Article 32. Article 32 is restricted to cases where the suit is against a person who had a right to use property for a specific purpose and the claim is to have that perversion removed. It would not apply to cases where in substance the plaintiff seeks a greater relief. It is not necessary for us to express any opinion finally in this case as to whether the suit is governed by Article 120, Limitation Act, and not by Article 144, which governs suits for immovable property not otherwise specially provided for, as in either case the suit is within time. We accordingly dismiss this appeal with costs.