K. Nath, J - (1.) .
(2.) ONE Bhola Agrahari was the owner of the house which fell down and was not in existence at the time when the suit was filed on 28-2-1953. The house was situated on the Abadi land of village Khairabad which belonged to the Zamindar. On 21-12-1905 Bhola had gifted the house to Mahadeo. Kanhai and Swaroop, the sons of his daughter, Srimati Jaggo. 35 or 40 years before the filing of the suit Mahadeo and Kanhai died issueless. In the meantime, village Khairabad was included in the Municipality of Sitapur. On 6-11-1948 Ram Swaroop gifted the so-called house on the land to his sons and wife (Raja Ram and others, plaintiff respondents nos. 1 to 6). Ram Swaroop himself was plaintiff no. 7 but he died during the pendency of the second appeal. According to the plaint, the donee-sons of Ram Swaroop entered into possession so much so that the suit was filed by the sons alone; Ram Swaroop was added as plaintiff no. 7 on the suo motu orders of trial court on 7-7-1958. On 5-1-1962 the then Zamindar- owners of the house-site, Rahmat Husain and Mulazim Husain sold the site to Srimati Kamla Devi by a registered sale deed for Rs. 1,000/-. Kamla Devi was the original defendant-appellants, but she also died during the pendency of this appeal and is now represented by her sons, heirs and legal representatives, the defendant-appellants. The plaintiff-respondents pleaded that they continued to be the owners in possession of the house which, however partly collapsed in heavy rains of 1955, leaving only the boundary walls which continued to exist, that earlier Srimati Sarju Devi, a dancing girl, was residing in the house as a tenant and subsequently continued to possess and reside therein as usufructuary mortgagee on behalf of Ram Swaroop but she had locked the house, left for Gonda, and was untraceable for more than 7 years before filing of the suit. It was complained that since after the rains of 1955, Srimati Kamla Devi started laying claim to the property and made an application to the Municipal Board for permission to make constructions on the land, indeed, for the preceding six days was already making constructions in the Sahan of the property. They therefore sued for a decree for possession "over the house with the land on which the house and the Sahan existed". An injunction was also sought to restrain the defendant-appellants 'from making any construction in the House and to demolish the walls made by the defendant-appellants'. The use of expression 'bouse' is of importance as shall appear hereafter.
(3.) THE defendant-appellant pleaded that Bhola Agrahari's house was in the Abadi site only in his capacity as Riyayah and by custom no Riyayah had a right to transfer the house without permission of the Zamindar. It was, therefore, said that gift by Bhola Agrahari to Ram Swaroop (dated 21-12-1905) and by Ram Swaroop to his sons (dated 6-11-1948) were void and illegal as the permission of the Zamindar had not been obtained. It was next said that atleast from 1941 the house on the land had fallen down and reduced to the condition of an open Ahata so that the site reverted to the Zamindar and Ram Swaroop and his sons not only abandoned the dilapidated house, but also abandoned the village and shifted to another village named Chhaoni Sadar where they have been living. THE land, according to the defendant-appellants, thus was only in the form of an open land without any structures with the result that on 5-1-1952 the owner-Zamindars Rahmat Husain etc. sold off the land by a registered sale deed to the defendant Srimati Kamla Devi. THEy said that they had been in possession and were rightfully making construction thereon. Both the parties laid voluminous documentary and oral evidence. The trial court relying upon the mortgage deed dated 8-3-1940, Exhibit-16, executed by Ram Swaroop in favour of Sarju Devi for Rs. 200/-, found that the house did not exist at least till 1940. He then referred to the ground rent receipts, Exhibits 40 to 43, executed on 25-5-1948, 8-5-1949, 15-6-1950 and 10-7-1951 by Rahmat Husain Zamindar in favour of Ram Swaroop and relied upon the evidence to hold that the house was in existence even at the time when Rahmat Husain sold the land to Kamla Devi on 5-1-1952. He noticed the entries in the Municipal Assessment Register, Exhibit 19, for the period from 1950 to 1955 bearing an endorsement under the signatures of the Chairman of the Municipal Board on 1-9-1949 recording the words "No House, Miso Maar Ho Gaya," and he held it to be of no consequence as the defendant herself had paid the House tax by receipts Exhibits A-15 and A-16 for the period 1956-57 and 1957-58 although it was admitted on behalf of the defendant that she had not constructed any house. The trial court in the circumstances held that the house had been existing on the disputed land at least till 1955.;