JUDGMENT Lindsay, J.
1. I have read the judgment of both the lower Courts in this case, and I have also heard learned, counsel in support of this appeal. In my opinion the judgments of the Courts below ought not to be interfered with. The plaintiff appellant is a zemindar in the village, and the land in dispute between the parties was a plot described as No. 483. The defendants are ryots in the village, and their case was that they were not liable to ejectment on the ground that this land had been used for many years as a place for pressing sugarcane and for tethering cattle. It is quite true that in the written statement the plea of customary right was not raised, and the defendants seem to have suggested that they had acquired a title to the land by adverse possession. However it was found by the Court of first instance and the lower appellate Court has agreed, that this land has for a very long time been used, by the village people as a place for manufacturing sugar and for tying cattle. It is quite close to the abadi site of the village.
2. The Court of first instance found that the plaintiff had a right to have a chabutra removed from the land in question but he dismissed the claim for possession in other respects. This decision has been upheld in appeal.
3. The Court of first instance cites a judgment of this Court which is reported as Padarath Tewari v. Baz Singh [1915] 29 I.C. 264. There it was laid down by Mr. Justice Banerji that where a tenant is in possession of parti land at a short distance from the site of his house for purposes of keeping his cattle-trough, cattle-shed and the sugarcane press, the presumption is that the land was given to him for purposes ancillary to agriculture, and if he builds a house on the land for stalling cattle and storing implements of husbandry, the zemindar cannot get the house demolished so long as they remain tenants. No case of adverse possession arises in such a case.
4. The lower appellate Court has also cited the ruling of Sundar Lal, J., reported as Rajab Ali v. Rajjoo Khan [1915] 12 A.L.J. 963 which is in the same sense as the judgment just referred to.
5. It appears to me on the strength of these rulings that the Court below cams to a right conclusion and that the plaintiff had no right to eject these defendants who are ryots in this village, inasmuch as it was proved that the land had been used for very many years for the purpose of crushing sugarcane and other purposes incidental to agriculture.
6. The main plea raised here is that the defendants were allowed to set up a new case in the lower appellate Court. I do not think this is quite a correct statement. All along the defendants were pleading that they had a right to keep possession of this land for the purposes above mentioned and that by reason of long user of this plot for those purposes the plaintiff was not entitled to eject them. I dismiss the appeal under Order 41, Rule 11.