SIS RAM Vs. ASA RAM

JUDGEMENT

(1.) This is a plaintiff's second appeal against the decision of the First Civil Judge of Saharanpur dismissing their suit for possession of the site of a house in the abadi of village Gangnoli in the district of Saharanpur. The plaintiffs alleged that they were the zamindars of the plot and the defendants their riyaya, and contended that the village being an agricultural one, a riyaya has no right to sell the malba (material) of the house in which he is permitted to reside nor can he transfer his right of residence. They further alleged that the second defendant had illegally sold the house and the land in dispute to the first defendant and this entitled the plaintiffs to resume possession. The first defendant alone contested the suit and denied that the village was agricultural. Ho relied on a custom permitting a riyaya to sell the malba of his residential house together with his right of residence.

(2.) The trial court held that there was no right of transfer in this village and consequently the plaintiffs were entitled to resume possession. It decreed the plaintiffs' suit. In appeal the learned Judge took a contrary view and held that there was a custom entitling the riyaya to make a transfer and, therefore, the defendants had acquired the house and the land lawfully. He further held that after the passing of the Z. A. and L. R. Act during the pendency of the appeal before him the zamin-dar had been divested of his estate and the property in dispute must be deemed to have been settled, under Section 9 of the Act, with the first defendant. Accordingly, he allowed the appeal and dismissed the suit of the plaintiffs one of whom came to this Court in Second Appeal.

(3.) The appeal was filed only by Sisrani. For some reason his brother and co-plaintiff Bhagwana did not join in the appeal and was arrayed as a pro forma respondent. During the pendency of this appeal Bhagwana died and an application for substituting his son was made. On 6-11-1954 this Court dismissed the application on the ground that the appellant had failed to disclose the exact date of Bhagwana's death in spite of repeated opportunities given to him. The Court declared the ap peal to have abated against Bhagwana and directed that this fact should be brought to the notice of the Bench hearing the appeal.