Ganga Nath, J.
1. This is a defendants' appeal and arises out of a suit brought against them by the plaintiff-respondent for possession over plot No. 196 of Abadi and Parti land described in the plaint by removal of the defendants' cattle troughs and thatch. The parties were co-sharers. A. partition took place between the parties and other co-sharers in 1926. The plot in dispute was allotted to the patti of the plaintiff at the time of the partition. There was at the time of partition a Bagar of the defendants' on the plot in dispute. The plaintiff brought this suit on the allegation that he was obstructed by the defendants when he wanted to make some constructions on the plot in dispute. The defendants contended that they had their Bagar on the plot in suit and therefore they had a right to remain in possession. The trial Court decreed the suit partly for possession over the plot except over that portion on which the defendants' chhappar stood. A cross-objection was filed by the plaintiff and an appeal by the defendants. The learned Additional Subordinate Judge allowed the cross-objection and dismissing the defendants' appeal, decreed the suit. Against this decision, this appeal has been filed by the defendants. The chief point for consideration is whether the defendants have any right of possession over the plot in suit. The defendants' case is that they had a building standing on the plot in dispute at the time of the partition and therefore they had a right to remain in possession. Section 118 of the United Provinces Land Revenue Act provides that
If, in making a partition, it is necessary to include in the portion allotted to one co-sharer the land occupied by a dwelling house or other building in the possession of another co-sharer, the latter shall be allowed to retain it with the building thereon, on condition of his paying for it a reasonable ground rent to the co-sharer in whose portion it may be included.
2. In the Full Bench case of Sarup Lal v. Lala 42 Ind. Cas. 589 : 39 A. 707 : 15 A.L.J. 757. It was held that
Where a partition has been effected under the provisions of the United Provinces Land Revenue Act, 1901, and the site of the house of one co-sharer has been allotted to the share of another co-sharer, the presumption is, the owner of the house was to retain possession of the house. The mere fact that ground rent has not been assessed cannot deprive the owner of the house of his right to it.
3. The question therefore that arises for consideration is whether the defendants had any house or building on the plot in suit or not at the time of the partition. At present no building, exists on the land in dispute. There are some cattle troughs and pegs and a rotten thatch is supported on some wooden poles. This thatch cannot be called a building. The defendants led evidence to show that they had a mud-house which had a tiled roof and, when it fell down, a thatch was put. This evidence is against the defendants' own allegations in their written statement. In para. No. 9 where they describe the buildings which according to them stood at the time of the partition, they have made no mention of any tiled building. On the other hand, they have referred to the thatch which according to them still exists. If there had been any mud-walls on which the present chhappar had been resting, there is no reason as to why those mud-walls were not re-built when they fell down, nor it has been explained as to how the chhappar was made to rest on the wooden poles if formerly there were any walls. The allegations in para. 9 of the written statement coupled with those in para. 1 in the defendants' cross-objection leave no room for doubt that the defendants had no such thing as a building, on the land in dispute. They had only some cattle troughs and pegs and a thatch for the shelter of the cattle. These things cannot be called a building. The lower Court has also found that the condition of the cattle troughs and the thatch shows that they have not been in the enjoyment of the defendants since partition. The learned Additional Subordinate Judge has observed: 'The broken down condition of the troughs and the rotten condition of the chhappar would show that defendant abandoned possession and enjoyment after the partition.'
4. A heap of manure or a cattle trough is not a 'dwelling house or other building' within the meaning of Section 118 of the U.P. Land Revenue Act. A co-sharer to whose share a plot of land, over which another co-sharer has made cattle troughs or stores heaps of manure, is allotted in partition is entitled to actual possession of the plot: vide Ram Kishore Misra v. Kalka Dichhit, 39 Ind. Cas. 575. As already stated, as there was no building at the time of partition, the defendants have no right to remain in possession over the plot in dispute, which was admittedly allotted to the plaintiff in partition. There is no force in the appeal. It is, therefore, ordered that the appeal be dismissed with costs and the decree of the lower Court be confirmed.
5. Permission to file a Letters Patent Appeal is rejected.