1. This appeal and the cross-objections arise out of a suit in which the plaintiffs who are zamindars sued for the demolition of a chabutra and the removal of pegs and nauds used for feeding and tethering cattle on the ground that these had been newly erected and that they caused obstruction to a road belonging to the plaintiffs. The defence was that the constructions complained of are not new but old, having been in existence for forty years, and that the plaintiffs have no right to claim their removal. The finding of both the Courts below is that the chabutra is at least twenty years old. The lower appellate Court has come to no definite finding about the other constructions, but the Munsif found these also to be twenty years old, and the evidence on the point is the same which lower appellate Court has accepted in respect of the chabutra
2. It is also found except as to one naud that there has been no obstruction. On these findings the learned subordinate Judge has held that the suit is not maintainable except in regard to one naud the removal of which he has directed. The reason for differentiating between this naud and the other constructions is not given in the judgment as it should have been, but it is evidently based on the report of a Commissioner who was appointed to examine the spot and whose report shows that the erection of this particular naud does amount to an obstruction to the plaintiffs’ way and is clearly a source of special damage to them. This is, I think, a sufficient justification for maintaining this portion of the decree as to which there is a cross-objection by the defendants.
3. The main contest has been on the appeal. The cause of action on which the plaintiffs came into Court having been found against them they have shifted their ground in this Court and maintained that even if the chabutra and the other constructions are old, the zamindars have a right to order their removal at any time. This is not in my opinion, the correct law applicable to the case. There have been a number of decisions in which it has been held that tenants in a village have a right to occupy a house as appurtenant to their tenancy i.e., so long as they retain the character of raiya in the village and it seems tome that the same principle may well apply to a chabutra which actually adjoins the house of the tenant as the disputed chabutra in this case does, and to the use of the necessary amenities for feeding and tying up the cattle which almost every tenant in a village possesses. It is a fair presumption to make that a chabutra which has been in existence for more than twenty years without any question by the zamindars was erected and has been occupied with their permission and consent and in my opinion, so long as the defendants remain raiya of the village, the plaintiffs are not entitled to have it removed. The fact that in the trial Court the plaintiffs never thought of claiming demolition except on the ground that the chabutra and other things were erected a few months before the suit was brought is a strong indication of what the custom really is.
4. As regards the age of the pegs and nauds, it is true that the lower appellate Court has not arrived at a distinct finding, but on this point I accept the finding of the Munsif as I am entitled to do under Section 103, Civil P.C., and hold that they are also old. This suit, the total value of which is only Rs. 100, has been going on since March 1921. I think it unnecessary to prolong the litigation further by calling for a finding on this point.
5. The result is that the appeal and the cross-objections are both dismissed with costs.