1. The plaintiffs in this suit are sole proprietors of a parcel of waste land situated in a village called Singauli Purbea. The contesting defendants leave constructed a house upon the parcei on land in question. The plaintiffs came into Court claiming the ejectment of the said defendants, with permission to the latter to remove the materials of their house before vacating the site if they should be inclined to do so. Facts were alleged in the plaint fully sufficient to warrant the plaintiffs in claiming the relief sought for. The difficulty about the case is that the lower Appellate Court has not found in favour of the plaintiffs on the questions of fact raised by the pleadings; nevertheless, the learned District Judge came to the conclusion that, on the facts found by him, the plaintiffs are entitled to the relief claimed. It is contended in second appeal that the learned District Judge was in error in taking this view. It seems advisable to give the facts found in the very words of the judgment of the lower Appellate Court.
The evidence shows that one Chidu Bania purchased from Chidu Kahar a portion of the latter's house, consisting of a thatched room, about 25 years ago. The purchaser removed the thatch and built a mud house in which he has since kept a shop. Two years ago he re-placed the mud constructions by a masonry house without the consent of the zemindars.
2. Undoubtedly, Chidu Kahar, as the District Judge remarks, bad no trnsferable right in anything except the materials of his house. He could not eVen convey to Chidu Bania a right of residence on the site in question. He did, however, purport to convey such right of residence, and some 25 years prior to the institution of the suit Cuidu Bania, who seems to have been previously residing in the same village, occupied a portion of the house transferred to him and made structural alterations fitting it for use as a shop. No exception was taken to his proceedings by the proprietors of the site. It can scarcely be presumed that they were in ignorance of what had been done. At any rate, there is no finding that they were in ignorance, or continued in ignorance, up to any specified date anterior to the institution of the suit. They did not allege that a cause of action accrued to them when they came to know of the transfer by Chidu K har to Chidu Bania; they alleged a different state of facts altogether. If it be taken that Chidu Bania occupied this site with out any title and against the will of the proprietors of the same, and that he proceeded to adopt the building previously standing thereon to his own use and occupied the same as a shop for more than twelve years, the inference, in my opinion, would be that he had acquired title by adverse possession against the proprietors of this site. The more correct inference seems to be that Chidu Bania did not occupy the site against the will of the proprietors, but with their consent, and on an express or implied understanding with them that he might have the use of the site for the construction of a shop. I may presume that, although Chidu Bania was not an agricultural tenant, yet he was a member of the village community and his keeping a shop in the village site may well have been a matter of convenience to the community as a whole. If it be presumed that his original possession was permissive, then his subsequent alteration of the premises constituting his shop, by converting the same into a masonry building would not, in my opinion, afford the plaintiff a cause of action. I refer on this point to the decision of a Bench of this Court in the case of Ghorey v. Shib Lal 58 Ind. Cas. 410 : 18 A.L.J. 781 : 2 U.P. L.R. (A.) 266. No doubt, the defendant in that suit was an agricultural tenant, to whom a site was granted tor the building of a. house; but it does not appear to me that any different principles would apply to the case of a village shop-keeper to whom a site had been granted for the purpose of keeping a shop. Other considerations might possibly have arisen if the plaintiffs had come into Court with a true statement of the facts and had alleged that, under the existing circumstances, they were entitled to claim a small ground rent from the principal defendants; but that question does not arise. Accordingly, I allow this appeal, set aside the decisions of both the Courts below and dismiss the plaintiff's suit, with costs throughout.