JUDGMENT

Harrison, J. - Bhag Singh, an occupancy tenant in village Kandolah, brought this suit against two of the proprietary body, asking for an injunction restraining them from interfering with him or preventing him from building a wall round a vacant site within the abadi. The suit was dismissed by the learned District Judge after considering all the evidence produced by the plaintiff on finding that, although he had established long user and although he bad shown that he himself had leased the vacant site to others on three occasions, he had not established his title, or, in other words, that the plaintiff had failed to establish any adversity or any overt act against the landlords. He appeals, urging that the uninterrupted user and the rent-deeds prove his title and a totally new point that as an occupancy tenant residing in the village he is entitled by custom to build a wall where ever he chooses. The only point before the lower appellate Court was whether plaintiff had proved his title to the land in suit and this is the only point which I propose to decide.

2. The case is precisely similar to Bhani v. Bhag Mal (1885) 66 PR. 1885 where it was held that an occupancy tenant who occupied a portion of the shamilat land with the consent or acquiescence of the proprietors for agricultural purposes cannot be disturbed in his possession so long as he remains a tenant in the village and uses the site for the purpose for which it was given; but if be diverts the site to other purposes, as for instance, to build upon, and disclaiming the title of the proprietors sets up an adverse title in himself, be forfeits his rights of user and is liable to ejectment at the suit of the proprietors.

3. Here the plaintiff has placed a belna on this vacant site and has used it. He has also had three deeds executed by tenants in his favour, but as none of these were registered there is nothing to show that the landlords received any notice of his claim to be entitled to let the site. All that they knew was that he and his father and others made use of this vacant site, the use being very similar in nature to that described in Framji Cursetji v. Goculdas Madhowji (1892) 16 Bom. 338, and there was no sort of overt act of adversity until the time when the plaintiff began to build his wall. I find that it is clearly established by the circumstances that the possession from the very start has been permissive, and that there has been no adversity whatsoever.

4. I, therefore, dismiss the appeal with costs.