MISRI LAL Vs. CAPTAIN RAJA DURGA NARAIN SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit in which the plaintiffs-appellants sought to recover a sum of Rs. 10 as damages for the price of a nim tree alleged to have been cut down by the defendants and also sought an injunction that the defendants should not interfere with the plaintiffs possession over the plot of land upon which the tree was growing. The question of the tree is apparently of subsidiary interest. The main question is whether the plaintiffs have a title to the plot of land. It has been established that the plaintiffs bought a house with the site upon which it stood from Ram Dayal and Debi Dayal on 8 July 1891. The house has fallen into a state of ruin and the main question is whether the plaintiffs had any title to possession over the plot upon which the house stood and upon which, as it happened, the nim tree was growing. The Courts below have found that the plaintiffs have not been in possession of this site or plot of land for a very long period and that they acquired no right to possession by the deed of sale because their vendors were not entitled to transfer the site of the house or, to put it in other words, to transfer the house with the right to occupy it and the land upon which it had been built.

(2.) The Courts below seem to have misdirected themselves upon this question of possession. The plaintiffs did not assert that they had been living in the house although they said that they had used the land for the purpose of tethering some of their animals upon it. That allegation has been disbelieved. The Courts seem to have assumed that the plaintiffs were out of possession in the legal sense because they had not established any definite acts of user within a certain period. They seem to me to have overlooked the point that the plaintiffs would be considered in law to be constructively in possession if they had a right to possession unless it could be shown that they had definitely been ousted by others or had definitely by their conduct evinced an intention of abandoning the site for ever. It was not the plaintiffs case that they had acquired any title by adverse possession and the real point, therefore, which has to be considered is whether the plaintiffs had acquired a legal right to remain in possession of this plot of land under the deed of sale of 8 July 1891. The question resolves itself into the very common one whether the tenant of a house is entitled to transfer it in a particular area with the right of occupation. The general rule in these provinces is that tenants in rural areas or agricultural villages are not entitled to transfer houses and the sites of houses but are entitled only to transfer the materials of which the houses are built whereas tenants in urban areas are entitled to transfer the houses as they stand upon their sites and the right of occupation therein. Thus tenants in urban areas have to all intents and purposes a proprietary right over the sites of their houses and the zamindar or the owner of the land is left only with a right of escheat in the case of abandonment or in the case of the decease of a tenant who leaves no heirs to succeed him.

(3.) It follows, therefore, in this particular case the real question is whether the town or village of Manderwa in which the land in suit lies is an urban area or an agricultural area or perhaps I should say was an urban or an agricultural area at the time when the transferors of the plaintiffs or their predecessors-in-interest were granted the land upon which they built the house which they transferred to the plaintiffs. Before I proceed to consider this question, I should like to make a few general observations which are perhaps not strictly relevant to the decision of the case before me. It seems from the reported cases that it has generally been assumed on both sides at the bar that the question whether a site is or is not transferable by a tenant is one which is to be determined upon a consideration whether there is or is not a custom having the force of law bearing upon the issue. It has been said that there is a custom in these provinces that sites of this nature in rural areas cannot be transferred and that sites in urban areas can be transferred. Because the word "custom" has been used, it has been assumed very generally that the question is one of custom having the force of law, and this being so, no Court has ever had occasion, as far as I can discover, to examine this aspect of the matter. It seems to me, however, that there is some danger in making the assumption which has been so generally made because it may at some time lead to unfortunate results. When we speak of a custom having the force of law we mean that there is some rule of law which has been established as a result of a custom which has crystallized so that it has come to have a legal force. It is advisable when we refer to a rule to state it in some precise terms.