GANGA KALWAR Vs. BENI MADHO PRASAD SINGH

JUDGEMENT

(1.) This is another of those cases in which the defence which is so common nowadays is made that there is a customary right of transfer of the sites of houses in a village. We are of opinion that, as has often been said, the most cogent evidence is required before such a custom can be held to be established.

(2.) It is true that zamindars like everybody else must be watchful for in fringement of their rights, but that is a very different matter from saying that they must be perpetually harassing their tenants and watching them to sea every little thing they do. It may constantly happen that a particular tenant may exceed his rights even by the execution of a sale deed purporting to transfer the right to a site, but the transaction may take place in circumstances in which the zamindar is either ignorant of it, or even knowing of it does not think it worth his while to worry about it. We may give an illustration of this. An agricultural tenant may part with his house and purport to part with the site also to another agricultural tenant, and the zamindar, even if he knows of it, may not feel it worth worrying about much less worth instituting a suit about it.

(3.) On the other hand, an agricultural tenant may purport to transfer his house and site to a non-agricultural tenant even a total stranger in the village. This may be a very serious matter for the zamindar, for if such a transfer is winked at by him and in course of time a custom is held to be established, he is manifestly in danger of losing the whole of his rights in a village site, and having to take up further sites from the agricultural area in order to provide room for his agricultural tenants. Now, in the present case, Bindayaohal is found to be an agricultural village. The transfer, by a perpetual lease, is by an agricultural tenant in favour of a non-agricultural tenant. The defendants seek to justify the lease of the site by the production, we are told, of 22 sale deads and eight mortgages, while the zamindar, on the other hand, has produced 14 kabuliyats and four instances relating to parjot." Both Courts have held that no custom is established. The transactions relied upon by the defendants are spread over 100 years, while there are 600 houses in Bindhyachal.