Harkishan vs Raghbir Singh and Another

Harnam Singh, J.—Har Kishan appeals u/s 100, Code of Civil Procedure, 1908, from the decree passed by the District Judge, Hissar, in civil Appeal No. 32-H of 1947 on 5-2-1948.

The point in dispute in the present proceedings is whether the decree of the lower appellate Court giving possession of the plot. A B C D to the Plaintiffs can be sustained on the conditions of the wajib-ul-arz prepared in the settlement of 1890-91. Mr. Jagan Nath Seth contends that inasmuch as the trial Court found issue 2 in favour of the Defendant-Appellant the lower appellate Court was in error in decreeing possession of the plot A B C D without upsetting the finding reached by the trial Court on issue 2.

Now, the trial Court found on issue 2 that inasmuch as the Plaintiffs admitted that the site A B C D was previously in possession of the Defendant the latter was entitled under the conditions of the wajib-ul-arz, Ex. P-4, to build as of right on the plot A B C D. In allowing the appeal the lower appellate Court said :

As Defendant has made constructions contrary to the object and purpose for which his ancestors wore granted this vacant site he is not entitled to the possession thereof.

Clearly there is no force in the contention raised.

The question that remains for consideration is weather the Defendant was entitled to build the kotha in question under the conditions of the wajib-ul-arz. Condition No. 7 of the wajib-ul-arz prepared in the settlement of 1890-91 reads :

The ownership of the site under abadi vests in the proprietors. A non-proprietor can sell the malba provided the value of that malba exceeds Rs. 20. Every person can extend or alter the kotha kham existing on the site in his possession, but a non-proprietor cannot build pacca building without the consent of the proprietors. No person can build on the vacant site pukh a house or kham house without the consent of the proprietors....

Now, Condition No. 7 of the wajib-ul-arz expressly provides that a non-proprietor cannot build on a part of the vacant site of the abadi without the consent of the proprietors. This condition has been contravened by the Defendant-Appellant, with the result that ha is liable to eviction from the site. Authority for this proposition is to be found in Amin Chand v. Dasoundha Singh 54 P.R. 1886. In that case Smyth J., (Tremlett J., concurring) said :

In this case it appears that the Defendants, who are weavers, were permitted to erect looms on a portion of the common land, but no permission was granted to them to build houses on the site. So long as they used the land for carrying on their trade they could not under a well recognised custom be ejected. But when they diverted the site to another purpose, not warranted by the grant, and built upon it, they forfeited their rights of user and are liable to ejectment.

In the present case the site A B C D was given to the ancestors of the Defendant-Appellant for the purpose of storage of cow-dung cakes. The Defendant-Appellant has, however, diverted the Site to another purpose and built upon it. That being so, the case falls within the rule laid down in Amin Chand v. Dasoundha Singh 54 P.R. 1886.

No other point arises in these proceedings.

In the result, the appeal fails and is dismissed with costs.