# Pitamber v. Ram Milan

- **Citation:** (2024) 9 ILRA 1299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-12
- **Case number:** Second Appeal No. 509 of 1987
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pitamber-v-ram-milan-52541
- **Pages:** 16

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Section - 100 - U.P. Zamindari Abolition &
Land Reforms Act, 1950 - Sections 7(aa) &
9 - Limitation Act, 1963 - Sections 3 & 27 -
Article - 65 of Schedule - I - Easement Act,
1882 - Sections 4 & 12 - Second Appeal -
challenging
the
judgments
and
decrees
regarding a land dispute - the plaintiffrespondent claimed ownership and possession
of the land, used for agricultural purposes since
before the abolition of zamindari, and sought a
permanent injunction against the defendantappellant, who allegedly constructed on the land
during the suit's pendency - The trial court as
well as the first appellate court, found that the
plaintiff-respondent has proved his title and
possession on the land in dispute but the
defendant-appellant has failed to prove the
same - this court finds that (i) there is no
illegality or error in the finding recorded by the
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
trial court as well as first appellant court, - (ii)
the 'adverse possession' can be claimed only if
the person claiming it is in actual possession of
the property and such possession is open and
undisturbed, - (iii) the 'easementary right' and
'adverse possession' can be setU.P. totally on
different footings, therefore they cannot be
pleaded together - held, concurrent findings of
fact recorded by the two court below are not
liable to be set aside in second appeal unless
and until the findings are perverse - hence
substantial
question
of
law
is
decided
accordingly and the appeal is dismissed,
affirming the plaintiff-respondent's title and
possession. (Para - 25, 26, 31, 32, 33, 35)

Appeal Dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,835 of 50,620. This is a partial read: ask again with offset=39835 for what follows._

9 All. Pitamber Vs. Ram Milan
1299
Thus, the prayer sought for by the parties
by jointly filing the Suit for declaration of
their matrimonial status as divorced ought
to have been granted by the learned Family
Court. The finding recorded by the learned
Additional Principal Judge, Family Court,
Jhansi that Suit in question is barred by
limitation having being instituted after a
lapse of about 20 years from the date of
commencement of the dissolution of
marital-tie, is unsustainable in the eyes of
law, in the teeth of the categorical provision
as stipulated under Section 29(3) of the
Limitation Act, 1963 and also not being in
consonance with the parameters laid down
by the Hon'ble Supreme Court of India, as
narrated in the preceding paragraphs,
regarding
the
assessment
of
the
reasonableness of the length of delay, if
any. Accordingly, the order of dismissal of
the Suit dated 10.10.2023 based upon the
unwarranted findings recorded in the
impugned judgment is liable to be setaside.

Order

1. The appeal is allowed. The
impugned judgment and order dated
10.10.2023
and
the
decree
dated
19.10.2023 passed by the Additional
Principal Judge, Family Court, Jhansi in
Declaration Case No.687 of 2021, are
hereby set-aside. The Suit for declaration of
the
matrimonial
status
is
decreed.
Accordingly, the matrimonial status of the
parties is hereby declared as 'divorced'.
2. However, the parties to bear
respective cost.
3. Since this appeal has been
decided with the mutual consent of the
parties, hence no useful purpose would be
served to retain the original 'Talaqnama
Tehreer' dated 07.03.2000 on record.
Accordingly, the Registry is directed to
return the same in-original to the appellant
after retaining a photocopy of the same on
record, in accordance with the Rules.
4. The Registry is further directed
to return the lower court record to the court
concerned.
----------
(2024) 9 ILRA 1299
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.09.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 509 of 1987

Pitamber ...Appellant
Versus
Ram Milan ...Respondent

Counsel for the Appellant:
B. Nath, Anand Giri, Manoj Kr. Gupta, Pradeep
Kumar Singh, Raghaw Ram Upadhyay, S.K.
Pandey

Counsel for the Respondents:
A.N. Verma, Anil Kumar Pandey, Gyanendra
Kumar Pandey

Civil Law - Civil Procedure Code, 1908 -
Section - 100 - U.P. Zamindari Abolition &
Land Reforms Act, 1950 - Sections 7(aa) &
9 - Limitation Act, 1963 - Sections 3 & 27 -
Article - 65 of Schedule - I - Easement Act,
1882 - Sections 4 & 12 - Second Appeal -
challenging
the
judgments
and
decrees
regarding a land dispute - the plaintiffrespondent claimed ownership and possession
of the land, used for agricultural purposes since
before the abolition of zamindari, and sought a
permanent injunction against the defendantappellant, who allegedly constructed on the land
during the suit's pendency - The trial court as
well as the first appellate court, found that the
plaintiff-respondent has proved his title and
possession on the land in dispute but the
defendant-appellant has failed to prove the
same - this court finds that (i) there is no
illegality or error in the finding recorded by the
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
trial court as well as first appellant court, - (ii)
the 'adverse possession' can be claimed only if
the person claiming it is in actual possession of
the property and such possession is open and
undisturbed, - (iii) the 'easementary right' and
'adverse possession' can be setU.P. totally on
different footings, therefore they cannot be
pleaded together - held, concurrent findings of
fact recorded by the two court below are not
liable to be set aside in second appeal unless
and until the findings are perverse - hence
substantial
question
of
law
is
decided
accordingly and the appeal is dismissed,
affirming the plaintiff-respondent's title and
possession. (Para - 25, 26, 31, 32, 33, 35)

Appeal Dismissed. (E-11)

List of Cases cited:

1. Ramchandra Sakharam Mahajan Vs Damodar
Trimbak Tanksale (D) & ors.- 2007(25) LCD
1515,

2. Gurunath Manohar Pavaskar & ors.Vs Nagesh
Siddappa Naval Gund & ors.- 2008(26) LCD 225,

3. T.K. Mohammed Abubucker (D) Thr. L. Rs. &
ors. Vs P.S.M. Ahamed Abdul Khader & ors.- AIR
2009 SC 2966.

4. Damodar Lal Vs Sohan Devi & ors.; 2016(34)
LCD 303 and Ambika Savaria & ors.Vs Sanjay
Sharma & ors.;2016(34) LCD 2500.

5. Harnam Singh Vs Bhikimbar Singh; AIR 1980,
All 50,

6. Ram Sukh Vs Gaya Din & anr.;1994(12) LCD
733,

7. Maharaj Singh Vs St. of U.P. & ors.; (1976) 1
SCC 155

8. Budhan Singh Vs Nabi Bux & anr.;1970 ALJ
903

9. Gafoor Vs Abdul Rashid & ors.- 1980 SCC
Online All 442,

10. Bashir Ahmad (Dead) Through LRS Vs Taiyab
Husain (Dead) Through LRS & ors.- 2012(6) AWC
6259
11. Bachhaj Nahar Vs Nilima Mandal &
anr.;(2008) 17 SCC 491,

12. Karnataka Board of Wakf Vs Govt. of India &
ors.; (2004) 10 SCC 779,

13. Ravinder Kaur Grewal & ors.Vs Manjit Kaur
& ors..; (2019) 8 SCC 729,

14. Kapil Kumar Vs Raj Kumar; (2022) 10 SCC
281,

15. Suryakunwari Vs Nanhu & ors.;2019(37)
LCD 2346.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Sri Raghav Ram Upadhyay,
learned counsel for the appellant and Sri
Anil Kumar Pandey, learned counsel for the
respondent.

2. The instant second appeal has
been filed for setting aside the judgment
and decree dated 29.03.1985 passed in
Regular Suit No.304 of 1982 by Munsif
Hawali,
Faizabad
now Ayodhya
and
judgment and decree dated 14.05.1987
passed in Civil Appeal No.89 of 1985 by
VIth Additional District Judge, Faizabad,
now Ayodhya.

3. The following substantial
questions of law have been formulated in
this second appeal:-

"(1) Whether on the facts
and circumstances of the case, the
Courts below would have decreed
the suit in absence of specific
findings with regard to the essential
conditions required under Section 9
of the U.P. Zamindari Abolition Act
in favour of the plaintiff?
(2) Whether mere use of the
land is sufficient to hold that the
land had been settled under Section
9 All. Pitamber Vs. Ram Milan
1301
9 of the U.P. Zamindari Abolition
Act?
(3) Whether essementary
right and the adverse possession
can be pleaded together and if not
the suit is liable to be rejected?
(4)Whether the land lying
after the public path and not
adjoining the house of the plaintiff
could
be
treated
as
land
appurtenant to the house of the
plaintiff under Section 9 of the U.P.
Z.A. & L.R. Act?"

4. Learned counsel for the
defendant-appellant submitted that the
plaintiff-respondent has failed to prove his
possession on the land in dispute, therefore
the suit could not have been decreed. The
suit can be decreed only if the plaintiff is
able to prove his case and not on the
weakness of the defence of the defendant,
whereas learned trial court and the
appellate court have decreed the suit and
dismissed the appeal on the ground that
defendant-appellant has failed to prove his
right on the land in dispute. He further
submitted that the defendant-appellant was
in possession of the land in dispute and it
was admitted by the witnesses of the
plaintiff-respondents also that thatch of the
defendant-appellant is on the land in
dispute. The drainage of the defendantappellant, as per evidence adduced by the
parties, was also going from the house of
the defendant-appellant towards east, then
north and then to the south in the pond. He
further submitted that there is overwriting
in the evidence of D.W.3 at page no.2 as 20
has been made 30.

5. On the basis of above,
submission of learned counsel for the
defendant-appellant is that the learned trial
court as well as the first appellate court
have wrongly and illegally decreed the suit
and dismissed the appeal, therefore the
appeal is liable to be allowed and the
judgment and decree passed by the first
appellate court and the trial court are liable
to be set aside. He relied on Ramchandra
Sakharam Mahajan versus Damodar
Trimbak Tanksale(D) and others;2007(25)
LCD 1515, Gurunath Manohar Pavaskar
and Others versus Nagesh Siddappa Naval
Gund and Others;2008(26) LCD 225 and
T.K. Mohammed Abubucker (D) Thr. L.
Rs. And Ors. Versus P.S.M. Ahamed Abdul
Khader and Others;AIR 2009 SC 2966.

6. Per contra, learned counsel for
the plaintiff-respondents submitted that the
suit for permanent injunction was filed by
the plaintiff-respondent. After filing of the
suit, the defendant-appellant had raised
construction and put thatch on the land in
dispute, therefore, the suit was amended
and prayer for mandatory injunction for
removal of construction made by the
defendant-appellant was made. Learned
trial court, after considering the pleadings
of the parties, framing the issues and
affording opportunity of evidence to the
parties decreed the suit by a reasoned and
speaking order. The first appeal filed by the
defendant-appellant has also rightly been
dismissed in accordance with law after
considering the pleadings of the parties and
evidence. He further submitted that case set
up at the trial stage was changed at the
appellate stage by the defendant-appellant
and a defence was taken that the land in
dispute is recorded as talab. He further
submitted that the land in dispute is not
appurtenant land of the defendant-appellant
and it is an appurtenant land of the
plaintiff-respondent and it is in front of the
house of the plaintiff-respondent. He
further submitted that the claim of the
defendant-appellant that he had purchased
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
the land in dispute from the then zamindar
could not be proved by him, therefore
learned trial court as well as the first
appellate
court have rightly and in
accordance with law decreed the suit and
dismissed the appeal, which does not suffer
from any illegality or error and call for any
interference by this Court.

7. On the basis of above,
submission of learned counsel for the
plaintiff- respondent is that he is in
possession of the land in dispute since the
time of their ancestors and they are using it
as
their
sahan
land,therefore
merely
because it is in front of the house of the
plaintiff-respondent after the public path, it
cannot be said that the land in dispute is not
appurtenant to the house of the plaintiffrespondent and it is being used for
beneficial enjoyment of the house of the
plaintiff-respondent. He relied on Damodar
Lal versus Sohan Devi and Others;
2016(34) LCD 303 and Ambika Savaria
and Others versus Sanjay Sharma and
Others;2016(34) LCD 2500.

8.

I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

9.
 The
suit
for
permanent
injunction was filed by the plaintiffrespondent claiming that the land in dispute
is his sahan land, on which he used to sit
and keep his animals and also use it for
agricultural purposes. He is in possession
of the land in dispute since the time of his
ancestors prior to abolition of zamindari,
therefore he has become owner of the land
in dispute under Section 9 of the U.P.
Zamindari Abolition & Land Reforms Act
1950(hereinafter referred to as the Act of
1950). It has further been alleged that the
defendant-appellant is a muscle man of the
village, who has also been elected as
Pradhan. Since the plaintiff-respondent had
not helped him in the election, therefore he
has become angry and trying to forcibly
make possession and raise construction in
the sahan land of the plaintiff-respondent.
During pendency of the suit, the defendantappellant raised certain constructions on the
land in dispute and put a thatch,therefore
the suit was amended and plea of
mandatory injunction for removal of the
construction raised by the defendantappellant and for a direction to hand over
the possession to the plaintiff-respondent
was made.

10. The written statement was filed
by the defendant-appellant admitting that
he has been elected as Pradhan and denying
the averments made in the suit. It has also
been stated that the plaintiff-respondent had
never been in possession of the land in
dispute. It has also been stated that the land
in dispute is made of land No.600 having
an area of 1 biswa and land No.601 having
an area of 5 dhur and land No.602 having
an area of 15 dhur and land no.603 having
an area of 15 dhur. It was purchased by him
from the then Zamindar Ravi Nandan
Singh in consideration of Rs.90/- and since
then he is in possession of land in dispute.
It has further been stated that after
purchasing the said land from the then
zamindar, Saria, Baithaka and Wall of
bricks have been erected and thatch has
been kept. The Saria has not been shown by
the plaintiff-respondent in the site plan
annexed with the plaint. It has also been
stated that the land in dispute is being used
for various house hold purposes and also he
used to sow vegetables and tree of neem is
also there. It has also been stated that the
drainage of the house of the defendantappellant goes from the house of the
defendant-appellant
and
plaintiff-
9 All. Pitamber Vs. Ram Milan
1303
respondent towards east and from the side
of his saria towards north in the pond. A
plea was also taken that the land in dispute
is recorded as talab in the government
records, which is deemed to be of the Gaon
Sabha and since the Gaon Sabha has not
been impleaded, therefore the suit is liable
to be dismissed for non-joinder of parties.
The site plan was annexed alongwith the
written statement showing that the drainage
of the defendant-appellant goes towards
north from his house, then east, then north
and then towards east to the pond. After
amendment,
the
additional
written
statement was filed denying the averments
as amended in the plaint. Thereafter
amendment was also made in the written
statement admitting the site plan as
prepared by the Commissioner, which
shows that the drainage of the house of the
defendant-appellant goes towards north and
then through passage between the houses of
defendant-appellant
and
plaintiffrespondent towards east and then after
passage in front of the house of both the
parties in the east side towards north and
then towards east in the pond.

11. After exchange of pleadings, the
trial court framed 6 issues. Thereafter
opportunity of evidence was afforded, in
which some documentary evidence were filed
and plaintiff-respondent Ram Milan appeared
as P.W.1 and one Ram Sukh as P.W.2. From
the side of the defendant-appellant Shobha
Nath Srivastava, Lekhpal appeared as D.W.1
and defendant-appellant Pitambar as D.W.2
and Ram Shabd as D.W.3. After considering
the pleadings of the parties, material and
evidence on record and after affording
opportunity of hearing to the parties, the trial
court decreed the suit by means of the
judgment and order dated 29.03.1985 holding
that the land in dispute is the sahan land of
the plaintiff-respondent and he is using it as
appurtenant land to his house and the
defendant-appellant has failed to prove his
case. It has further been held that a plea has
been taken that the land in dispute was taken
from the then zamindar and in the written
statement it has been stated that the land in
dispute has been purchased from the then
Zamindar Raghu Nandan Singh, whereas in
the evidence on oath it has been stated that it
has been purchased from Ravi Nandan Singh
and receipt of payment of Rs.90/- as claimed
or any documentary evidence in regard to
purchase of land has not been placed on
record, rather it has been admitted in the oral
evidence that there is no such documentary
evidence. It has also been observed that
despite admission that the sons of the then
zamindar are alive by D.W.3, none has been
produced in evidence. The learned trial court
also found that the defendant-appellant has
raised construction and kept his thatch on the
land in dispute during pendency of the suit
and accordingly directed to remove it. Being
aggrieved, the defendant-appellant filed first
appeal. The first appeal has been dismissed
holding that the plaintiff-respondent is the
owner and in possession of the land in
dispute and the defendant-appellant has failed
to prove his possession on the land in dispute
and the plaintiff-respondent has proved his
better title on the land in dispute in
comparison to the defendant-appellant. The
appeal has been dismissed by means of the
judgment and order dated 14.05.1987.
Therefore the present second appeal has been
filed and the aforesaid substantial questions
of law have been formulated in it.

12. Section 7(aa) and 9 of the Act
of 1950, relevant for consideration of this
case are extracted hereinbelow:

7.Saving in respect of
certain rights-- Nothing contained
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
in this chapter shall in any way
affect the right of any person-
(aa) being a bhumidhar,
sirdar, adhivasi or asami of any
land, to continue to enjoy any
easement or any similar right for
the more beneficial enjoyment of
the land, as he was enjoying on the
date immediately preceding the
date of vesting;]
9. Private wells, trees in
abadi and buildings to be settled
with
the
existing
owners
or
occupiers thereof.
- [All wells] [Substituted by
U.P. Act No. 16 of 1953 (w.e.f.
01.07.1952).], trees in abadi and
all buildings situate within the
limits of an estate belonging to or
held by an intermediary or tenant
or other person whether residing in
the village or not, shall continue to
belong to or be held by such
intermediary tenant or person, as
the case may be, and the site of the
wells or the buildings within the
area appurtenant thereto shall be
deemed to be settled with him by
the State Government on such
terms and conditions as may be
prescribed.

13. Under the aforesaid Section
7(aa), if a person was enjoying the right
of easement or any similar right for more
beneficial enjoyment of any land prior to
date of vesting, he shall continue to enjoy
the same after abolition of Zamindari and
date of vesting. Under the aforesaid
Section 9, the site of wells or the
buildings within the area appurtenant
thereto shall be deemed to be settled with
the person who is holding it since prior to
the abolition of the Zamindari. Thus
Section 9 provides for conceptualizing
the area appurtenant to buildings to have
settled with the owners of the buildings
etc.

14. 'Appurtenant' is dependence
of the building on what appertain to it for
it's use as a building. The meaning of the
word 'appurtenant' as given in the
'Mariam
Webster
Dictionary'
is
constituting a legal accompaniment and
'appurtenance' is an incidental right
attached to a principle property right and
passing in possession with it. According
to the 'Law Lexican Dictionary', the
word 'appurtenant' means appertaining or
belonging
to;
accessory;
pertaining,
incident or relating to, as a legal right,
interest or property subsidiary to one
more
valuable
or
important.'Oxford
Dictionary' defines the 'appurtenant' as a
thing
appertaining,
a
belonging,
belonging as a property or legal right(to);
specify in law, constituting a property or
right subsidiary to one which is more
important.

15. This Court, in the case of
Harnam Singh versus Bhikimbar Singh;
AIR 1980, All 50, has held that literally
the word 'appurtenant' means pertaining
to or belonging to. It does not mean
adjacent to.

16. This Court, in the case of
Ram
Sukh
versus
Gaya
Din
&
Another;1994(12) LCD 733, relied on the
judgment of the Chief Court of Oudh in
the case of Special Manager Court of
Wards, Balrampur Estate versus Shyam
Lal;AIR 1936 Oudh 324, in which it has
been held that land appurtenant to
residential house need not be actually
adjoining the house and the user of the
land for the enjoyment of the house by
the claimant or by person is necessary to
9 All. Pitamber Vs. Ram Milan
1305
be proved with certain length of period.
The relevant paragraphs 28 and 29 are
extracted herein-below:

"28. It is also well settled
that a Riaya may have the Sahan
Darwaza on all the sides of a
house. It is user of the land on the
date of vesting and prior thereto is
material. The passing of a galiyara
or Rasta or drain in between the
building or house and the land over
which in relation to a building or
house, the rights of appurtenance is
claimed, does not adversely affect
the sahan darwaza right or rights
involving rights of a person to a
land as land appurtenant In the
case of Special Manager Court of
Wards. Balrampur Estate v. Shyam
Lal (AIR 1936 Oudh 324) it has
been held by the Chief Court of
Oudh, that land appurtenant to
residential house need not be
actually adjoining the house and
the user of the land for the
enjoyment of the house by the
claimant or by person is necessary
to be proved with certain length of
period may be of 12 years as held
by Chief Court of Oudh in the case
of S. Murtaza Ali v. Emperor,
reported in (AIR 1947 Oudh page
131).
29.
The
material
observation of the Hon'ble Chief
Court of Oudh in the case of
Balrampur Estate (Supra) reads as
under:
"As to the argument that
the land in question cannot be
treated as appurtenant to house
because there is a public road
interven- ing I do not think there is
any force in the contention. No
authority has been cited for the
view that appurtenant land must
actually
be
adjoining
the
residential house, prima facie, I do
not see why a tenant should not use
land opposite his house but on the
other side of public way for the
purpose of tethering his cattle and
why such land should not be
regarded as appurtenant to his
house. In absence of any authority
to the contrary I think it may be
held that the land is appurtenant."

17. The 'appurtenance' has been
considered by the Hon'ble Supreme Court,
in the case of Maharaj Singh versus State
of U.P. and others; (1976) 1 SCC 155, and
has
held
that
the
'appurtenance'
is
dependence of the building on what
appertains to it for its use as a building. The
relevant paragraphs 27 and 28 are extracted
here-in-below:-

27.
"Appurtenance',
in
relation to a dwelling, or to a
school, college .... includes all land
occupied therewith and used for the
purpose
thereof
(Words
and
Phrases
Legally
Defined---
Butterworths, 2nd edn).
"The word 'appurtenances'
has a distinct and definite meaning
....Prima facie it imports nothing
more
than
what
is
strictly
appertaining to the subject-matter
of the devise or grant, and which
would, in truth, pass without being
specially
mentioned:Ordinarily,
what is necessary for the enjoyment
and has been used for the purpose
of the building, such as easements,
alone
will
be
appurtenant.
Therefore, what is necessary for the
enjoy- ment of the building is alone
1306 INDIAN LAW REPORTS ALLAHABAD SERIES
covered
by
the
expression
'appurtenance'.
If
some
other
purpose was being fulfilled by the
building and the lands, it is not
possible to contend that those lands
are covered by the expression
'appurte- nances'. Indeed 'it is
settled by the earliest authority,
repeated without contradiction to
the latest, that land cannot be
appurtenant to land. The word
'appurtenances' includes all the
incorporeal hereditaments attached
to the land granted or demised,
such as rights of way, of common
...but it does not include lands in
addition to that granted'. (Words
and Phrase, supra).
28. In short, the touchstone
of 'appurtenance' is dependence of
the building on what appertains to
it for its use as a building.
Obviously, the hat, bazar or mela is
not
an
appurtenance
to
the
building. The law thus leads to the
clear conclusion that even if the
buildings were used and enjoyed in
the past with the whole stretch of
vacant space for a hat or mela, the
land is not appurtenant to the prin-
cipal subject granted by s. 9, viz.,
buildings.
This
conclustion
is
inevitable, although the contrary
argument may be ingenious. What
the High Court has grant- ed, viz.,
5 yards of surrounding space, is
sound in law although based on
guess-work in fact. The appeal fails
and is dismissed but, in the
circumstances, without costs.

18. The Hon'ble Supreme Court, in
the case of Budhan Singh Vs. Nabi Bux
and Another;1970 ALJ 903, has held that it
is true that the legislature could have used
the word "lawfully held" in place of the
word "held" in section 9 but as mentioned
earlier one of the dictionary meanings
given to the word "held" is, "lawfully
held". The expression "held" has been used
in various other sections to connote
possession by legal title.

19. A coordinate Bench of this
Court, in the case of Gafoor versus Abdul
Rashid and Others,1980 SCC Online All
442, has held that before a person is
entitled to claim settlement of land under
Section 9 of the U.P. Act 1 of 1951 it must
be found that the land was necessary for the
enjoyment of the building of which it was
claimed to be appurtenant.

20. This Court, in the case of
Bashir Ahmad (Dead) Through LRS
versus Taiyab Husain(Dead) Through
LRS and others; 2012(6) AWC 6259, has
held that under Section 9 of the U.P. Z.A. &
L.R. Act, land may be settled only if it is
appurtenant
to
the
claimant's
house,
essential to be used for the beneficial
enjoyment of the claimant's house, actually
being used for the beneficial enjoyment of
the claimant's house and has got a
reasonable ratio with the constructed
portion which under no circumstance can
be double the area of the constructed
portion.

21. In view of above a claim for
settlement of any land under Section 9 of
Act of 1950 is tenable and can succeed
only if the land in question is appurtenant
to house of claimant, however it need not
be just adjacent to the house of the claimant
but in close proximity and may be in front
of house of claimant after public path so
that it is essential for beneficial enjoyment
of house of claimant and it is actually being
used for beneficial enjoyment of house of
9 All. Pitamber Vs. Ram Milan
1307
claimant i.e. for household and agricultural
purposes since prior to abolition of
zamindari and date of vesting under the
Act.

22. Adverting to the facts of the
present case, this Court finds that plaintiffrespondent claimed that the land in dispute
is the appurtenant land to his house, which
is being used by him, since the time of his
ancestors
and
prior
to
abolition
of
zamindari, for various purposes including
agricultural purposes, therefore it is settled
under Section 9 of the Act of 1950 with
him and it has been proved by the plaintiffrespondent by appearing himself as P.W.1
and adducing evidnce of P.W.2 Ram Sukh
who admitted that the land in dispute is in
possession of the plaintiff-respondent since
the time of his memory and the defendantappellant is not in possession of the land in
dispute. His drainage also does not pass in
the land in dispute, it goes to east. He also
admitted that he is of the caste of the
defendant-appellant. He also admitted that
he is seeing the saria of the defendantappellant for the last 6-7 years whereas the
khute on the land in dispute are of the
plaintiff-respondent.
Sri
Shobha
Ram
Srivastava, Lekhpal appeared as D.W.1. He
admitted that he does not know the land in
dispute. He also admitted that he does not
know on which number it is situated. The
defendant-appellant-Pitamber appeared as
D.W.2 but he could not prove his possession.
The evidence of D.W.3-Ram Shabd has not
been found reliable by the trial court as
according to his evidence he was not residing
at the place as stated by him since prior to
abolition of zamindari. So far as the plea of
manipulation in the years of living of the
D.W.3 in his in-laws house is concerned, it
cannot be said to be correct as no such plea
was ever taken,even before the court's below.
If it would have been, this plea must have been
taken before the trial court, where the evidence
was recorded in presence of counsels or before
the first appellate court when the finding of the
trial court had come on it.

23. The learned trial court, after
considering the pleadings of the parties and
evidence on record, held that the plaintiffrespondent is the owner of the land in dispute
and he is in possession of the same and the
defendant-appellant has evicted the plaintiffrespondent and kept his thatch on the land in
dispute which is liable to be removed. The
learned trial court also found that the
defendant-appellant, though claimed in the
written statement that land in dispute was
purchased by him from Ravi Nandan Singh,
the then Zamindar in consideration of Rs.90/-
but in the evidence adduced before the trial
court he stated that it was purchased from the
then Zamindar Raghu Nandan Singh therefore
there is contradiction in the name of the then
zamindar and no documentary evidence of
purchasing has also been placed on record
including the receipt of Rs.90/- as claimed
by the defendant-appellant. This Court does
not find any illegality or error in the
findings recorded by the trial court.

24. So far as the judgment relied
by learned counsel for the appellant are
concerned they are on the point that the
burden to establish title is on the plaintiff
but the weakness of the defence or the
failure of the defendants to establish the
title set up by them would not enable the
plaintiff to a decree, which are not
applicable on the facts and circumstances
of the case in hand because the plaintiffrespondent has proved his title whereas the
defendant-appellant has failed to demolish
his case and prove the case set up by him.

25. The learned trial court, after
considering the rival claim of the parties in
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
the present case, has held that the plaintiffrespondent has proved his title and
possession on the land in dispute but the
defendant-appellant has failed to prove the
same. On being challenged before the first
appellate court, the first appellate court also
considered the grounds raised by the
defendant-appellant and the pleadings and
evidence on record making the point of
determination as to whether the plaintiffrespondent has been the owner and in
possession of the land in dispute or the
defendant-appellant.
The
learned
first
appellate court also, after considering the
pleadings and evidence on record, found
that the plaintiff-respondent has proved his
title better than the defendant-appellant as
is apparent from the evidence on record. It
is proved from the evidence on record that
the plaintiff-respondent was in peaceful
possession on the land in dispute and the
defendant-appellant has made possession
on
the
land
in dispute by
raising
constructions and putting thatch on the land
in dispute during pendency of the suit. The
learned first appellate court came to the
said conclusion after considering the
respective pleadings and evidence of the
parties. The Hon'ble Supreme Court, in the
case of Ramchandra Sakharam Mahajan
versus Damodar Trimbak Tansksale (D)
and others(supra), has held that obviously
the burden is on the plaintiff to establish the
title but no doubt in appreciating the case
of title set up by the plaintiff, the Court is
also entitled to consider the rival title set up
by the defendants. But the weakness of the
defence or the failure of the defendants to
establish the title set up by them, would not
enable the plaintiff to a decree. Thus the
rival claims of the parties are to be
considered by the court.

26. In view of above, this Court
does not find any illegality or error in the
findings recorded by the trial court as well
as the first appellate court. The substantial
questions of law no.1,2 and 4 are decided
accordingly.

27. The 'easementary right' can be
claimed under the Easements Act 1882.
Section 4 defines the easement, which is
extracted herein-below:-

"4. Easement defined-An
easement is a right which the
owner or occupier of certain land
possesses,
as
such,
for
the
beneficial enjoyment of that land,
to do and continue to do something,
or to prevent and continue to
prevent something being done, in
or upon, or in respect of, certain
other land not his own.
Dominant
and
servient
heritages and owners- The land for
the beneficial enjoyment of which
the right exists is called the
dominant heritage, and the owner
or occupier thereof the dominant
owner; the land on which the
liability is imposed is called the
servient heritage, and the owner or
occupier
thereof
the
servient
owner"
Explanation-In the first and
second clauses of this section, the
expression
land
includes
also
things permanently attached to the
earth; the expression beneficial
enjoyment includes also possible
convenience, remote advantage and
even a mere amenity; and the
expression
to
do
something
includes
removal
and
appropriation by the dominant
owner, for the beneficial enjoyment
of the dominant heritage, of any
part of the soil of the servient
9 All. Pitamber Vs. Ram Milan
1309
heritage or anything growing or
subsisting thereon."

28. Section 12 provides as to who
may acquire easements, which is extracted
here-in-below:-

"12. Who may acquire
easements.-An easement may be
acquired by the owner of the
immovable
property
for
the
beneficial enjoyment of which the
right is created or on his behalf, by
any person in possession of the
same.
One of two or more coowners of immovable property
may, as such, with or without the
consent of the other or others,
acquire
an
easement
for
the
beneficial
enjoyment
of
such
property.
No lessee of immovable
property can acquire, for the
beneficial
enjoyment
of
other
immovable property of his own, an
easement in or over the property
comprised in his lease."

29. In view of above, the
'easementry right' may be acquired by the
owner or occupier of an immovable
property for the beneficial enjoyment of
that property i.e. to do or to continue to do
something or to prevent or continue to
prevent
something
being
done
that
something is in or upon or in respect of
certain other property, which is not his
own. The land for the beneficial enjoyment
of which the right exists is called the
dominant heritage and the owner or
occupier thereof, the dominant owner; the
land on which the liability is imposed is
called the servient heritage, and the owner
or occupier thereof, the servient owner.
Thus, the right of easement is claimed by
owner or occupier of an immovable
property for the beneficial enjoyment of
that property on the other property or land
which is not owned by him and in his
possession. The Hon'ble Supreme Court
has held as under in paragraph 19 of
Bachhaj Nahar versus Nilima Mandal and
Another;(2008) 17 SCC 491:-

"19.Easements may relate
to a right of way, a right to light
and air, right to draw water, right to
support, right to have overhanging
eaves, right of drainage, right to a
watercourse, etc. Easements can be
acquired by different ways and are
of different kinds, that is, easement
by grant, easement of necessity,
easement by prescription, etc. A
dominant
owner
seeking
any
declaratory or injunctive relief
relating to an easementary right
shall have to plead and prove the
nature of easement, manner of
acquisition of the easementary
right,
and
the
manner
of
disturbance or obstruction to the
easementary right."

30. The law of 'adverse possession'
finds it's roots in the law of Limitation Act
1963. Section 3 of the Limitation Act 1963
provides the bar of limitation,according to
which no cognizance can be taken by the
court if the suit is barred by limitation
whether the defence is taken by the
defendant or not. However, the said
provision bars only remedy of the person
filing the suit and not his right as available
to him under law. Section 27 of the Act
provides that in case the person has not
taken any action for recovery of possession
during the period of limitation then his
right gets extinguished. Article 65 of
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
Schedule 1 of the Limitation Act, 1963
prescribes a limitation of 12 years for a suit
for possession of an immovable property or
any interest therein based on title and after
passing of the period of limitation, the
possession of the defendant becomes
adverse to the plaintiff. Article 65 of
Schedule 1 of Limitation Act is extracted
hereinbelow:-

Description
of
suit
Period of
limitation
Time from
which
period
begins
to
run
For
possession
of
immovable
property or any
interest
therein
based on tittle
explanation - for
purpose of this
article
(a) where the
suit
is
by
a
remainderman, a
reversioner
(
other
than
a
landlord) or a
devisee,
the
possession
of
defendant shall
be deemed to
become adverse
only when the
estate
of
the
remainderman,
reversioner
or
device, as the
case
may
be,
falls
into
possession ;
(b) where is suit
is by a hindu or
Twelve
years.
When
the
possession
of
the
defendant
becomes
adverse to
the
plaintiff.
muslim entitled
to the possession
of
immovable
property
on
death of a Hindu
or
Muslim
female,
the
possession of the
defendant shall
be deemed to
become adverse
only when the
female dies;
(c) where the
suit
is
by
a
purchaser at a
sale in execution
of a decree when
the
judgment
debtor was out
of possession at
the date of the
sale,
the
purchaser
shall
be deemed to be
a representative
of the judgment-
debtor who was
out
of
possession

31. In view of above, the 'adverse
possession' can be claimed only if the
person claiming it is in actual possession of
the property and such possession is open
and undisturbed. It is well settled principle
that the party claiming adverse possession
must prove that his possession is 'nec vi,
nec clam, nec precario' i.e. peaceful, open
and continuous. The possession must be
adequate in continuity, in publicity and in
extent to show wrongful disposition of the
rightful owner and be actual, visible,
exclusive, hostile and continued over the
9 All. Pitamber Vs. Ram Milan
1311
statutory period. Therefore whenever the
plea of adverse possession is projected,
inherent in the plea is that someone else
was the owner of the property and it is open
and within his knowledge. The Hon'ble
Supreme Court, in the case of Karnataka
Board of Wakf versus Government of
India and others;(2004) 10 SCC 779, has
held that it is a well settled principle that a
party claiming adverse possession must
prove that his possession is 'nec vi, nec
clam, nec precario', that is, peaceful, open
and continuous. The possession must be
adequate in continuity, in publicity and in
extent to show that their possession is
adverse to the true owner. It must start with
a wrongful disposition of the rightful owner
and be actual, visible, exclusive, hostile and
continued over the statutory period. The
relevant paragraphs 11 and 12 are extracted
hereinbelow:-

11. In the eye of law, an
owner would be deemed to be in
possession of a property so long as
there is no intrusion. Non-use of the
property by the owner even for a
long time won't affect his title. But
the position will be altered when
another person takes possession of
the property and asserts a right
over it. Adverse possession is a
hostile
possession
by
clearly
asserting hostile title in denial of
the title of true owner. It is a well-
settled principle that a party
claiming adverse possession must
prove that his possession is 'nec vi,
nec clam, nec precario', that is,
peaceful, open and continuous. The
possession must be adequate in
continuity, in publicity and in extent
to show that their possession is
adverse to the true owner. It must
start with a wrongful disposition of
the rightful owner and be actual,
visible,
exclusive,
hostile
and
continued over the statutory period.
(See :S M Karim v.