JUDGMENT
Mukerji, J.
1. The respondents instituted the suit out of which this appeal has arisen against the appellant on the ground that they have erected a building on a piece of vacant land within the zamindari of the plaintiffs and without their permission. The prayer was that the plaintiffs should be restored to possession after demolition of the constructions. The defence, as usual in these cases, was that the construction was very old and the plaintiffs were estopped from maintaining the suit, evidently on the ground that the building was old. There is also a plea that the land was appurtenant to the holding. Both the Courts have decreed the suit. They have, however, found that the land, being in front of the defendant’s house, was used by him for agricultural purposes, e.g., tying of cattle and so forth. In this Court it has been contended that the land being a part of the holding the defendant was entitled to improve it by erecting buildings, as provided by Clause (12), Sub-clause (d), Section 4, N.W.P. Ten. Act of 1901, Section 4, Clause (12), Sub-clause (d) has no application whatsoever, for the simple reason that this land is situated in the abadi and is not “land” within the meaning of Section 4(2) of the Act.
2. Then it has been contended that in view of a ruling of a single Judge of this Court, namely Padarath Tewari v. Baz Singh [1915] 29 I.C. 264 the suit should have been dismissed it being held that the defendant was entitled to erect a building. The Courts below have relied on the case of Bhagwan Rai v. Jaddu Raj Rai A.I.R. 1926 All. 66. In the earlier case of Padarath Tewari [1915] 29 I.C. 264, the findings were that the land had been occupied by the tenant by having, on it, cattle troughs, sugar pressing mill and a shed for sugarcane juice and keeping cattle. On these findings it was held that the tenant could rebuild the shed which they had there. It was not at all a case in which a land which was entirely vacant was built upon by the tenant who had previously no building thereon. The correct law seems to be what has been laid down in the case of Bhagwan Rai v. Jaddu Raj Rai A.I.R. 1926 All. 66. A tenant occupying land in the abadi is in the position of a mere licensee unless he can show that he held under any particular lease. A license to use a particular piece of land in a particular way cannot be utilised to use the land in a different way. A license to erect a permanent building cannot be revoked. If there had been a license given to that tenant to erect a permanent building on the land, the plaintiffs would not be in a position to ask for possession over the land. It does, therefore, make a material difference between a license to merely use a piece of vacant land and a license to build on the same.
3. On the findings of the Courts below, the building cannot be maintained. It is, however, clear that the land should be restored to the defendant’s possession so that he might use the same in the way in which he was using it before he decided to erect a building on the same. The judgments of the Courts below, as also the decree of the Court of first instance, do not show that possession was decreed to the plaintiffs. The point, however, is not very clearly brought out either in the judgments or in the decree. To remove the doubt, I direct that the following be inserted in the decree namely:
on the demolition of the buildings the defendant would hold the land, to be used as a vacant piece of land by him for agricultural purposes.
4. The appeal substantially fails and is hereby dismissed, except as indicated above, with costs.
