JUDGMENT
Henry Griffin, J.
1. The plaintiff in this case is the zemindar of a patti in the town of Mariahu where the defendants reside. The plaintiff brought this suit for an injunction to restrain the defendants from constructing a well in their house and for an order directing them to remove the materials and to restore the land to its original condition. The defendants are shopkeepers whose family has been in occupation of the premises for generations without paying any rent. They pleaded that they had a right to construct the well on their premises, that the well had been constructed for their own comfort and convenience and that the suit was brought out of malice. The Court of first instance dismissed the suit, holding that the construction of the well inside the house was not, such a user as affected the zemindar’s rights injuriously and that the well was a necessary adjunct to the comforts of the occupants of the house. The lower Appellate Court on appeal held that the plaintiff zemindar was entitled to the relief asked for on the ground that the construction of the well was an interference with the plaintiff’s right as zemindar. The lower Appellate Court having decreed the suit, the defendants come here in second appeal. The Courts below find that the occupiers of houses in Mariahu have a right to transfer houses subject to payment of one-fourth of the sale price to the zemindar. We have heard the learned Counsel for the parties at considerable length. The question, as it appears to me for decision in this appeal is whether the plaintiff has made out a case for issue of an injunction. The plaintiff is the zemindar of the patti where the defendant’s house is situated. His rights as zemindar appear to be limited by the rights which occupants of houses have acquired by custom against the zemindar so long as the houses are in the occupation of the family. The houses only escheat to the zemindar in case of the family dying out. I am unable to hold that the construction of the well on the premises of the defendants is a breach of any obligation existing in favour of the plaintiff whether expressly or by implication. A well on the premises is an undoubted adjunct to the convenience of the occupants, and it is difficult to see in what way the zemindar’s interests are injuriously affected by its construction, while its removal would undoubtedly cause inconvenience to the defendants. If there be an invasion of the zemindar’s right, it is of so slight and doubtful a nature as not to call for interference, more particularly in view of the fact that the chance of the zemindar entering into possession of the house is very remote. There appears to be some reason for holding, as held by the Court of first instance, that the plaintiff was actuated by malice in instituting the present suit. Taking all the circumstances into consideration, I am of opinion that this is not a case in which the injunction asked for should be granted. I would, therefore, allow the appeal and dismiss the plaintiff’s suit.
Chamier, J.
2. I agree that this appeal should be allowed. The appellants are the owners and occupiers of a shop and an adjoining house in Kasha Mariahu. The respondent is the zemindar of the Kasha. The question for decision is whether the appellants are entitled to sink a well inside the shop without the permission of the respondent. It has been found by the Courts below, and it is now admitted by the appellants, that the respondent is the exclusive owner of the land on which the house and shop stand, but that the appellants are entitled to retain possession as long as the buildings remain on the land. The Munsif held that the appellants were entitled to sink the well without the respondent’s permission. On appeal, the Subordinate Judge held that they were not.
3. It must be taken that the predecessors of the appellants obtained the land from the zemindar, for the time being, for the purpose of erecting buildings thereon, and that they agreed expressly or impliedly not to use the land for any other purpose. Therefore, if the acts now complained of are inconsistent with the purpose for which the land was given to the appellants’ predecessors, the respondent is entitled to a mandatory injunction. It was not suggested by Counsel for the appellants that a mandatory injunction was not a suitable form of relief or that any other relief would meet the case. In this connection I may note that it was admitted before us that the respondent objected to the construction of the well as soon as he came to know of it.
4. Two provisions in the wajib-ul-arz have been referred to. One of them certainly has no bearing upon the case. It relates to the digging of wells by kashtkars, and evidently was not intended to apply to the abadi. The other says that a kashtkar or ryot can build and pull down as he pleases within his own enclosure (andar ihate apne he bana o bigar sakta hai). I doubt whether this was intended to authorize the construction of wells. It was probably intended to authorise a kashtkar, or ryot, to make structural alterations inside his premises without reference to the zemindar.
5. But I am not prepared to hold that the sinking of a well within the premises was an act necessarily inconsistent with the purpose for which the land was granted. A well is one of the amenities or conveniences of an Indian house, and I consider that the grant of land for building purposes carries with it the right of making a well for the convenience of the occupiers. I would, therefore, restore the decree of the Munsif.
6. The appeal is allowed, the decree of the lower Appellate Court is set aside and that of the Court of first instance restored. The plaintiff will pay the costs of the defendants throughout.
