JUDGMENT

1. This is an appeal under Section 12(2), Oudh Courts Act. The plaintiffs are the owners of 12 annas patti in Alamnagar, Sitapur. The plots are 11 and 19A which are situated in the plaintiffs' patti. Originally, the land had been given to the defendants to build a house. The defendants constructed a "kachcba" thatched house on a portion of the plots. In September 1932 the house was swept away by floods and the land became, according to the plaintiffs, vacant or "uftada" land. The plaintiffs' case is that the defendants could not, after it had become "uftada", rebuild the house without the permission of the zamindar. On 19th September 1932, the plaintiffs served a notice on the defendants asking them not to build on the land but to vacate the land. Notwithstanding such notice, however, the defendants have built the house again. The relief claimed was for possession of the portion built upon. The defence was that 25 years ago the defendants had been given the land on a rent of Rs. 2 per annum under an agreement to build a house and that there was no flood in September 1932 and the house did not fall down in 1932, and it was not reconstructed but only repaires were made. Then in the alternative it was pleaded that even if the house did fall down, the plaintiffs had no right to claim possession as it was not a new house.

2. The trial Court held that the defendants' house fell down and was completely swept away in 1932, and secondly that the land became 'uftada' within the meaning of the wajib-ul-arz when the house was swept away by floods, and consequently the tenant must take previous permission from the zamindar before building. An appeal was filed by the defendants and the Court of first appeal held that the existence of the agreement set up by the defendants is false and not established. The thatched house of the defendants had been completely swept away and the land became vacant. The Court of first appeal agreed with the construction put upon the "wajib-ul-arz" by the trial Court. A second appeal was filed and was decided by the Hon'ble Chief Judge. The Hon'ble Chief Judge quotes the "wajibJ ularz:"

Arazi uftada men, Tcisi bashinda wa ghair bashinda ho bila ijazat hamare makan jadeed banane lea ilihtiyar nalein hai.

3. The Munsif and the Civil Judge both held that "uftada" meant not only land which had never been built upon but included land which became vacant subsequently. The case relied upon by the Munsif in which a judgment was passed by the Additional District Judge of Sitapur, related to abandonment. In the present case there was no question of abandonment. The Hon'ble Chief Judge in his final passage says:

A case like the present one was never contemplated by the persons who dictated the wajib-ul-arz'. Where a house falls down in floods or during the rainy season and the tenant rebuilds it, in my opinion such a fact does not give the zamindar a right to sue for ejectment. If the site had been abandoned I have no doubt it would have reverted to the zamindar. If I put a contrary construction on the wajib-ul-arz, as I have been asked to do by the learned Counsel for the respondents, it will mean a great hardship on the poor tenants. The words "makan jadeed", in my opinion, mean putting up a new house and not repairing or rebuilding the old house. It is true that the word 'uftada' means vacant land, but taking the para of the wajib-ul-arz as a whole, I am of opinion that such an eventuality as the present one was never contemplated by the framers of the wajib-ul-arz. It was pointed out by the learned Counsel for the respondents that 'bashinda', that is resident, 'waghair bashinda that is non-resident both had to take the permission of the landlord before building, but in my opinion it means that they had to take permission for building 'makan jadeed' that is a new house. The house which the defendants have built in my opinion is not a 'makan jadeed', but they have built the old house on the old foundation.

4. App