P.L. Bhargava, J.
1. This appeal has been filed by Munshi Ziauddin and others, who were plaintiffs-in a suit instituted by them, in the Court of the Munsif of Mohammadabad Gohna at Azamgarh, against Jagmohan Ram, the defendant-respondent for obtaining (1) a perpetual injunction directing the defendant to demolish certain enclosures and walls, constructed by him on sub-plots Nos. 12 and 13, which form part of the abadi plot No. 440 in village Baragaon, in the district of Azamgarh, and to have no concern with a garhi in plot No. 887 of the same village; and (2) a decree for possession over the plots aforesaid. Admittedly, the parties are co-sharers in village Baragaon, and there has been a perfect partition in the village and the abadi plot No. 440 has also been partitioned, as a result of which different portions of it have been allotted to different mahals and khewats.
2. The plaintiffs claimed to be the owners of sub-plot No. 12. This claim was contested; but it is no longer disputed that the plaintiffs are the owners of the said plot. The plaintiffs alleged that they had been exercising certain rights over the plot; but they have not been able to substantiate their allegation. They also alleged that the defendant had no right to make any construction on the plot aforesaid. The defendant asserted that on the plot in dispute there was his ahata, which was formerly enclosed by wire fencing and has now been enclosed by mud walls. As regards sub-plot No. 13, the plaintiffs pointed out in their plaint, that it was the sahan in front of the defendant's house, which stood on plot No. 14, and that he was entitled to use it as such but had no right to make any constructions thereon. It is not disputed that the defendant is a co-sharer in the plot along with the plaintiffs.
3. The plaintiffs' case was that in the year 1939 the defendant purchased the house of Fazal Karim, which stood on an adjoining subplot No. 11, and while rebuilding the same he made the enclosures and walls on sub-plots Nos. 12 and 13, which he had no right to do. They did not allege that they had ever held possession over the plots.
4. The defendant admitted having made the enclosures and walls and contended that he was entitled to make them. He also alleged that he had acquired title to the land in suit by adverse possession for more than 13 years; but he did not press that plea. The trial Court, however, re-corded the finding that the plaintiffs had held 'possession within 12 years of the suit in their capacity as zamindars and that the defendant was never in adverse possession.' In view of the pleadings of the parties, this finding was not at all necessary. The Court below found that thedefendant has been using and is entitled to use the land in dispute as his sahan darwaza, and that the enclosures and walls were entirely new constructions and were made about five years ago.
5. As far as the garhi-land is concerned the plaintiffs alleged that plaintiffs 5 and 6 had filled it up and were using it for various purposes. On the other hand, the defendant's contention was that he had filled it up and was using it as a cosharer. The Courts below have not recorded any separate finding about the garhi-land.
6. The defendant had pleaded the bar of limitation. The Courts below have held that the suit was governed by Article 82 of Schedule I, Limitation Act, and, as it was instituted more than two years after the constructions were made, it was barred by time. Accordingly, the whole suit was dismissed by the learned Munsif; and his decision was upheld in appeal by the learned Civil Judge of Azamgarh. The plaintiffs have now preferred this appeal.
7. In this appeal, the learned counsel for the plaintiffs-appellants has argued that the view taken by the Courts below on the question of limitation is erroneous. The position is this: The plaintiffs are the owners of sub-plot No. 12. The defendant is not the owner of the plot, but he and his predecessors-in-title have been using it for keeping tal of fuel wood and as sahan-darwaza from before 1876. The plaintiffs and the defendant are co-sharers in sub-plot No. 13. The defendant has been using the plot as his sahan-darwaza. About five years before the institution of the suit, the defendant constructed the enclosures and walls. The Courts below have held that the defendant, who had been using the land as an open sahan, had enclosed the laud and it was a case of perverted user and that, as the suit was filed more than two years after the perversion first became known to the plaintiffs, it was barred by time, under Article 32, Limitation Act. The contention put forward on behalf of the plaintiffs-appellants is that the position of the defendant was that of a mere licensee and the perverted user amounts to their complete ouster ; consequently, the suit is not governed by Article 32, Limitation Act.
8. The first question for consideration in this appeal is whether the position of the defendant in relation to the land in suit was that of a mere licensee. The learned counsel for the appellants has contended that the use of a piece of land as a sahan does not amount to an easement of necessity or any other kind of easement, which may be acquired under Section 15, Easements Act; and that it will be a mere licence under Section 52 of the Act. The contention is based upon a single judge ruling of this Court in Lachman v. Ratnakar Singh : AIR1934All836 , which was affirmed in appeal under the Letters Patent in Lachman v. Lal Ratnakar Singh, 1987 ALL. L. J. 515. In that case a suit was brought by a zamindar against his tenants for the demolition and removal of a chaupal which had been built by them on an open piece of land in front of their house, which was being used by them like a sahan for tying cattle, etc. The land was part of the aladi land and was not included in their tenancy land. There was no proof that the land had been granted to the tenants for building purposes or, for the matter of that, for any particular or specific purpose. All that was establishad in that case was that there was an open piece of ground in front of the defendants' house which they had been using as a sitting place and for the purpose of tying their cattle thereon; and in that sense they had treated it as a sahan in front of their house. It was held that land had not been in the exclusive possession of the defendants in the sense in which a lessee or an agricultural tenant was in possession of his leased property or tenancy land; and that the defendants' position was that of a licensee within the meaning of Section 52, Easements Act, as they had been granted a right to do certain acts upon the piece of land in front of their house.
9. The position in the present case, as we have already seen, is entirely different. The defendant was not a tenant. He was a co-sharer in the village. The abadi land of the village had been partitioned and, according to the plaintiffs' own case, each co-sharer was in exclusive possession of the land which had fallen to his share. The defendant was also in exclusive possession of some land. His house stood on sub-plot No. 14, He was using sub-plot No. 13, which was in front, of his house as his sahan-darwaza, not as a tenant or a licensee but as one of the co-sharers. He held exclusive possession thereon from before the year 1876. No one had granted to him a right to do or continue to do in or upon the land something which would, in the absence of such right, have been unlawful. Therefore, the position of the defendant in regard to sub. plot No. 13 could not be that of a mere licensee.
10. As far as sub-plot No. 12 is concerned, it appears from the partition khasra of the year 1876 that the defendant's father was keeping on a portion of it a tal of fuel wood. This tal was in existence in the year 1931, when the qabuliat, Ex. v. was executed by Bharose Misir in favour of the defendant. The qabuliat was in respect of a house, which was bounded as follows: East--pucca well belonging to Jagmohan Ram. The house of Mohammad Salim Khan; West--house of Yar Mohammad; North--enclosure (gher) and tal of fuel wood of Jagmohan Ram. Garhi Mahmood. South--the remaining portion of the house of Jagmohan Ram. This document proves the existence of not only the tal but also of an enclosure, which might have been constructed for the safety of the tal. A portion of sub-plot No. 12 was in front of the house of Fazal Karim, who was using, it as his sahan-darwaza since 1876. There is noproof on the record that the defendant or his father, Baij Nath, or Fazal Karim were granted any right to use the land in any particular manner. After the death of Baij Nath, his son, the defendant, and after the death of Fazal Karim, his son, Salim Khan, and later on the defendant as a transferee from Salim Khan had been using the land. The defendant and his predecessors in-title held their houses as owners and not as tenants or licensees. From the mere fact that now the defendant is using plot No. 12 as his sahan it is not possible to infer that he held the land as a mere licensee.
11. Aa pointed out in Lachman v. Ratnakar Singh, 1937 ALL. L. J. 515, already cited:
'In certain circumstances a user as a sitting place or for tying cattle may be abaolutely necessary for the comfort or convenience of an agricultural tenant who has settled in the village, and such a right may not be revocable.'
The position of a riyaya occupying a house in a village came up for consideration before a learned fiingle Judge of this Court in Panni Lal v. Anant Singh 0065/1945 : AIR1946All284 . There it was observed:
' . ... the position of a riyaya occupying a house in a village has been only loosely said to be that of 8 bare licensee. He no doubt has got no interest in the land barring a right of building on it and a right of residence so long as he lives in the village, but the materials of the house belong to him and he is the owner thereof. Further his rights are heritable and in certain cases also transferable.'
Therefore, even a tenant may acquire irrevocable and valuable rights in the land, which has been in his use and in the use of his predecessors, in-title. In Chinnan v. Ranjithammal A.I.R. (18) 1931 Mad. 216, it was observed:
'A licence is not annexed to the property in respect of which it is enjoyed, nor is it a transferable or heritable right, but is a right purely personal between grantor and licensee. Unless a different intention appears, it cannot even be exercised by the licensee's servants or agents : Section 56.'
As already pointed out, in this case Baij Nath and Fazal Karim had been in possession of the land and using it for certain purposes, and after their deaths their successors-in-interest have held possession and used the land in the same manner. Consequently, they have been enjoying heritable and transferable right and not the right which could be revoked at any time. The ruling reported in 1937 ALL. L. J. 515 is, therefore, distinguishable and it is not possible to hold in this case that the defendant was holding sub-plots Nos. 12 and 13 as a mere licensee.
12. The next question which arises for consideration in the appeal is whether this is a case of perversion simpliciter or a case of complete ouster. The learned counsel for the appellants, as we have already seen has contended that this is a case of preverted user, coupled with complete ouster of the plaintiffs. In this connection also reference (reliance ?) has been placed upon the two cases already referred to above, viz. Lachman v.Ratnakar Singh : AIR1934All836 and Lachman v. Ratnakar Singh, 1937 ALL. L. J. 515. Reference has also been made to the Full Bench decision of the Lahore High Court in Mastan Singh v. Santa Singh, 14 Lah. 867. The case reported in : AIR1934All836 does not help us in view of the finding that the position of the defendant in this case was not that of a mere licensee. It was pointed out in that case that:
'Article 32, Limitation Act, can be applied in the case as the possession by the defendant before the construction was made was that of a mere licensee.'
In 1937 ALL. L. J. 615, at p. 517 it was observed:
'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 tha 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 cage.'
13. The facts of the case before us are, however, different. In this case the defendant has made constructions on the land which has been in his exclusive possession from before 1876 and in part of which he is a co-sharer. Admittedly, as a co-sharer he is in possession of a portion of the abadi land, which was allotted to him on partition. The plaintiffs have been out of possession completely at least from the year 1876. The finding of the trial Court that the plaintiffs have held possession over the land as zamindar and the defendant has not acquired title thereto by adverse possession is not of much consequence in view of the fact that the plaintiffs never claimed to be in actual possession of the land and the defendant gave up his plea based on adverse possession. In the trial Court the plaintiffs tried to prove that the constructions in question had been recently made, while the defendant attempted to show that they were old constructions having been made in place of those already existing. The trial Court came to the conclusion that the constructions which were entirely new had been made about five years before the suit. The Courts below proceeded on the assumption that the defendant was not entitled to make the constructions and came to the conclusion that it was a case of perverted user and the suit was liable to be dismissed as it was brought more than two years after the perversion had become known to the plaintiffs.
14. In the ease reported in Mastan Singh v. Santa Singh, 14 Lah. 367, the facts were these : The property in dispute was a portion of the village shamilat, owned by the proprietary body, of which the plaintiffs and defendants were members. The property in dispute had been set apart for use for a specific purpose, and both the plaintiffs and the defendants, along with the restof the proprietary body, had an equal right to use it for that purpose. More than two years before the institution of the suit, the defendants, had taken exclusive possession of the disputed property and had diverted it for a purpose other than the one for which it had been set apart; and they set up their own exclusive ownership of the area in question and denied its character as joint property of the parties. In these circumstances, it was held that Article 32 was applicable to those cases only in which the injury complained of was a perverted user of the property by the defendant, who had the right to use it for a specific purpose and the plaintiff sought the assistance of the Court merely to get rid of the perversion; but it had 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 amounts to anouster of the plaintiffs from the property in question and the real object of the suit was not to get rid of the perversion simpliciter but to have the dispute as to title settled.
15. Here, in the case before us, the abadi land had been partitioned and each co-sharer held possession over his separate share and the land had not been set apart for being used by any particular person or body of persons. It was being used by the defendant himself. As the defendant and his predecessor-in-title had held exclusive possession over the land and they had been using it to the exclusion of the plaintiffs in a particular manner and as the plaintiffs had been out of possession since 1876 the constructions of the walls by the defendant could not amount to their ouster. It was a case of perverted user. Therefore, the cases relied upon by the plaintiffs'learned counsel are clearly distinguishable.
16. The lower appellate Court has referred to another single Judge decision of this Court in Ram Narain Singh v. Shripat Singh, 1937 ALL. L.J. 1231 which was also upheld in appeal under the Letters Patent (vide Sripat Singh v. Ram Narain Singh, L. P. A. No. 81 of 1937, D/- 9 12-1938, by Thorn C. J. and Ganga Nath J.) The case was decided by Bajpai J., who was also a member of the Division Bench which had heard the case reported in Lachman v. Ratnakar Singh, 1937 ALL. L. J. 515. There it was found that the defendants were entitled to use the land as sahan-darwaza and a sahan-darwaza only. They had made certain constructions on the land and a suit was brought for removal of the constructions. It was held that it was a case of perverted user and if the plaintiffs were dissatisfied and wanted redress, they ought to have instituted the suit within two years under Article 32, Limitation Act.
17. The learned counsel for the appellants has pointed out that the case reported in Bam Narain Singh v. Shripat Singh, 1937 ALL. L. J. 1281, was distinguishable and in any case, doesnot lay down the law correctly. The facts of that ease were very much similar to those of the present case. In that case also the plaintiffs had sought two reliefs: (1) for the removal of the perversion; and (2) for ejectment of the defendants. There, as in the present case, the ouster of the plaintiffs had taken place long before the constructions in dispute were made. The relief by way of ejectment was refused as the plaintiffs' dispossession had not taken place within 12 years before the institution of the suit. The relief for the removal of the perversion was refused because the suit had not been filed within two years from the date when the perversion became known to the plaintiffs. The learned Judges, who decided the appeal under the Letters Patent, observed:
'In the case of perversion of the user of a property, it is open to the plaintiff to bring a suit merely for the removal of the perversion. It is also conceivable that a perversion of the user of the property may give a right to the plaintiff to claim any other relief. The period of limitation for a suit for that relief would depend on the nature of the relief which the plaintiff may claim. If the perversion amounts to ouster or entitled the plaintiff to possession over the property and a suit is brought for recovery of possession, the suit would not be governed by Article 32 ; but if the suit is only for the removal of the perversion, it would be governed by Article 32, Limitation Act. In case the plaintiff claims any relief other than the one for removal of the perversion on the basis of perversion of the user of the property, it would be incumbent on the plaintiff to frame his suit accordingly, and to raise a specific issue as to his right to the relief which he claims and based on the perversion of the user.'
If we may say so with respect, this is a correct statement of law; and we entirely agree with the above observations.
18. It appears from the judgment of the trial Court that the plaintiffs never pleaded that they had held possession over the land in dispute within 12 years before the institution of the suit, and they did not press the plea that they had acquired the right of easement over the land in dispute. It also appears that the defendant did not press their claim based upon adverse possession or their pleas of estoppel, res judicata and misjoinder of causes of action. Therefore, the plaintiffs' case was confined to relief for removal of perversion simpliciter and their claim was never based on the plea of ouster, complete or otherwise.
We, therefore, hold that this was a case of perversion simpliciter and as the plaintiffs' claim related to removal of the constructions only, it was rightly held to be governed by Article 32, Limitation Act. The appeal, therefore, fails and is dismissed with costs.