MUHAMMAD USMAN Vs. BABU

JUDGEMENT

(1.) The Question in this appeal is whether or not a custom said to prevail in the village of Walidpur in the district of Azamgarh has been proved whereby a tenant occupying a house in the abadi of the village is empowered to dispose of it to a stranger, without the consent of the landlord, not merely the material of the house but also the right to reside in it so long as the house is standing.

(2.) The plaintiffs, who are the zamindars, upon the sale by their tenant of the house in question instituted the suit out of which this appeal has arisen for recovery of the site of the house and also for one-fourth of the materials of the house, or the value of one-fourth of such materials. They claimed to be entitled of the materials under a provision in the wajib-ul-urz of the village which runs as follows: "A ryot who sells a house pays one-fourth of the sale consideration to the zamindar, and the latter, if he desires to do so, takes one-fourth of the materials of the house." The defendant in his defence did not deny that he was a ryot in the village. The case he set up was that he was tenant not of the plaintiffs but of one Mubark Ali and that the sale was made with his consent. He also set up an alleged custom whereby a tenant has a right to sell his house including its site.

(3.) The Court of first instance gave a decree to the plaintiffs for one-fourth of the value of the materials of the house but in other respects dismissed the suit.