THE DEFINITION OF "APPURTENANT" IN SECTION 3 OF THE GENERAL CLAUSES ACT, 1897, IS "PERTAINING TO" OR "BELONGING TO".

( 1 ) THIS second appeal has been filed at the instance of the plaintiff who succeeded in the trial court but the decision was reversed by the lower appellate court. In brief the facts relevant for the purposes of this appeal are as under: the house of the plaintiff is situated in the south-west of a Rasta at the corner and opposite to it there is a small piece of land which is in dispute, is shown by letters As. Be, Sa, Da in the plaint map. To the further north of the said land was a house of the defendants which was lying in a dilapidated condition and thereafter was the house of one Bam Chandra. The dispute related to the open piece of land which both the parties claimed as appurtenant to their houses.

( 2 ) NOBODY had appeared on behalf of the respondents in this case.

( 3 ) I have heard the learned counsel for the appellant and have also gone through the judgment of the courts below. The learned counsel for the appellant has assailed the decision of the lower appellate court on two grounds. Firstly, that the Court has mis-read material evidence on the record and has, therefore, returned a wrong finding of fact. Secondly, it was stated that the land in question was appurtenant to the house of the plaintiff-appellant and it was not necessary that the same should be adjacent to or contiguous to the house of the plaintiff.

( 4 ) ON the first point it has been brought to my notice that the finding recorded by the court below appears to be based merely on conjecture and surmises than on the basis of correct reading of evidence before it. The lower appellate court has mentioned in the judgment that the plaintiff had admitted in his statement that his cattle used to be tethered inside the sehan of the house. This does not appear to be correct. I have searched in vain the entire statement of the plaintiff but I have not been able to find in any portion of his statement where such an admission might have been made. In the statement of the plaintiff as P. W. 2 there is a clear mention to the contrary which may be quoted as below;-"merey makan ke andar maweshi naheen bandhte hain. "

( 5 ) IN fact what the lower appellate court has written in its judgment is quite opposite of what the statement of P. W. 2 was. It is a clear case of misreading of material evidence because it is on the basis of this admission that the lower appellate court has disbelieved the statement of the plaintiff.

( 6 ) THE learned counsel for the appellant has pointed out many contradictions in the statement of d. Ws. and has submitted that they were not worth relying (upon) at all. There was no contradiction in the statements of P. Ws. which would justify rejection of their testimony. He has further submitted that the lower appellate court was perhaps influenced by the fact that the disputed land was situated across a lane and as such cannot in any case be said to be appurtenant to the house of the plaintiff and it was in this light that the entire evidence has been weighed by that court. I find some force in this submission.

( 7 ) ON the second point the submission of the learned counsel was that if any land to be appurtenant to any property it is not necessary that it should be adjacent to or adjoining the parent property and even if there was a lane in between yet the land in dispute would be appurtenant to the house of the plaintiff if it was shown that it was used for beneficial enjoyment of the house of the plaintiff. It is a use for the mere beneficial enjoyment of the parent property which is material and not the contiguity of the property. It is not uncommon in the villages or even in towns that property near the house but not adjoining it may be used entirely for the beneficial enjoyment of the parent property. The mere fact that some drain or lane intervenes would not lead to the conclusion that the land was not appurtenant to the parent property. In the instant case there is a report of the Commissioner on the record and it shows tha