JUDGMENT

1. This is a second appeal against a decree of the learned District Judge of Lucknow who concurred with the learned Civil Judge in decreeing the plaintiff-respondent's suit for possession of a piece of abadi land in village Pihani, District Hardoi. The case has a long history. The suit was originally filed by the plaintiff on 12th December 1927, in the Court of the Munsif Shahabad against Babu Kanhaiya Lal and Babu Debi Dayal, defendants 1 and 2 only. He claimed to be the sole proprietor of the land in dispute as zamindar of village Pihani Khurd and alleged that the plot was originally occupied by the thatched house of Icha Kori who lived as a riyaya of the plaintiff's ancestors and died about forty years before the suit. The following pedigree of Icha was set up:

TABLE

2. It was stated that after Icha's death, his sons Ghirrao and Auseri continued to live in the thatched house in the same capacity as their father. Auseri was succeeded by Ram Din, Ganesh and Kalwa, that some twenty years before the suit Ganesh and Kalwa died issueless and ten years later Ram Din gave up his residence in the house and had not been heard of since. On Ghirrao dying issueless in 1920, the house became dilapidated and according to the custom of the village reverted with the site to the zamindar who took possession of it. It was further stated that the plaintiff's grandfather Mir Mohsin Ali, the sole zamindar of the land died in 1923 leaving the plaintiff's father Mohammad Abbas as his only heir but Mohammad Abbas also died a few months later leaving the plaintiff aged six years as his heir. The plaintiff's property was looked after by his grand-mother, Mt. Zakiya Begam, widow of Mohsin Ali, who was an old pardanashin lady. In September 1927 she came to know that the defendants were constructing a pucca house on the land in suit and though she tried through her servants to dissuade them, the defendants paid no heed to their remonstrance. It was stated in the plaint that the defendants claimed to have obtain, ed some sort of deed in respect of the land from the rayats of the house but that it was void and ineffectual as against the plaintiff zamindar. It was stated that the house and the site came into the possession of Mir Mohsin Ali according to the custom of the village on the house being abandoned. On these allegations, the following reliefs were claimed by the plaintiff: (a) that a decree for actual proprietary possession over the land compound No. 1453 and house No. 834 (recent settlement)/1214 (old settlement) be passed in favour of the plaintiff, (b) that defendants be directed to remove the materials of the building from the plot of land within the time to be fixed by the Court and in case of their failing to do so, possession may be awarded along with the materials, (c) a perpetual injunction be issued to the defendants so that they may refrain from raising any construction on the land in dispute.

3. The suit was contested by the defendants who denied that the plaintiff was the sole proprietor of Mohalla Murid Khani in which the land in suit was situated. They admitted that Icha was a riyaya of the zamindar but alleged that Ramdin's son was still alive and that Ghirrao died only two years before suit. They set up a nessessory mortgage in favour of defendant 1 by Ghirrao and Ramdin and stated that they were in possession as such mortgagees. They further stated that in 1924 they started the present building for installing Thakurji in it and had actually installed the idol there. They also denied the custom set up by the plaintiff and further pleaded that if such a custom did exist it was unenforceable as Pihani was a big town. This was the gist of the defence set up by the defendants. In oral pleadings, however, on behalf of the plaintiff it was denied that any descendant of Icha was living and it was pleaded that the plaintiff had got the right of re-entry by reason of the license granted to Icha having determined. It was further said