ORDER

M.N. Shukla, J. - This is a Defendants second appeal arising out of a suit for perpetual injunction restraining the Appellants from interfering with the Respondent's possession over the gher in dispute. The suit was dismissed by the trial court but decreed by the lower appellate court and hence the Defendants have come in second appeal to this Court.

2. A perusal of the plaint in the present case indicates that the suit was brought by the Plaintiff-Respondent on the basis of title long user i.e. exercising certain acts of possession of miscellaneous nature. It may also be possible to spell out a case of possessory title. The averments in the plaint were that the Plaintiff was the owner of the gher and had been using it for tethering of cattle and keeping ghoor gani and bhitauras. In these circumstances the three main points on which the decision in the case must depend are as follows:

1. Whether the Plaintiff succeeded in proving his title?

2. Whether the use of the suit land for miscellaneous purposes would confer any title on the Plaintiff in case such user is establised?

3. Whether the Plaintiff can succeed on the basis of possessory title i.e. long prior possession in the instant case where the Defendants asserted their own title?

3. On the question of title the trial court framed a specific issue:

Whether the Plaintiff is the owner of the Gher in suit and trees existing thereon as alleged ? The Plaintiff's title was clearly negatived by the trial court which came to the conclusion that the Plaintiff was not the owner of the land in suit or the trees standing thereon. That finding was not reversed by the lower appellate court and consequently it must be held that the Plaintiff failed to prove his title i.e. he was not the owner of the property in suit.

4. The lower appellate court decided the case in the Plaintiff's favour on the basis that the disputed land had been in his possession and user as alleged in the plaint. In other words, the court below believed the Plaintiff's case that he had been using the disputed land for miscellaneous purposes i.e. keeping of ghoor gani and bhitauras and also tethering of cattle.

5. The question, therefore, arises as to whether this kind of miscellaneous user can confer any title or can amount to adverse possession. In Framji Cruestji v. Goculdas Madhowji ILR 26 Bom 338 the party claiming to have established a right in the land by adverse possession had proved to have erected on the land in dispute privy and sheds for cows, goats, fowls etc. and a hut for ghariwala, all, however, structures of a flimsy and purely temporary character. It has held that such user of the land by itself was insufficient to support a title therein by adverse possession. It was observed:

User of this sort under similar circumstances is common in this country and excites no particular attention. It is neither intended to denote, or understood as denoting--on the one side or the other--a claim to the ownership of the land and where this and no more, is the case it would be wrong to hold that a claim by adverse possession has been made out.

The above decision was followed by a Division Bench of this Court in Asa Ram v. Ram Chandra 1939 AWR (HC) 11. Thom, J. Lald down the rule as follows:

The mere tethering of cattle and storing of logs and the construction of foundations of a house began many years back but, not visible on the surface on a piece of waste land, is no indication of possession which is intended to be adverse to the title of the proprietor of the land.

The Bombay case was also followed by the Oudh Chief Court in Iqbal Ali v. Humayun Qadar 1941 AWR (Rev.) 289 wherein it was observed:

Where after the falling of a house into rains for a long time the land presents the appearance of a mere ahata with a dalan bounded on all sides by the houses of the neighbours, such acts of possession by the adverse possession, (members of the real owner's family), as tethering of cattle, using the land as a playground, cooking