KEDAR NATH Vs. DATTA PRASAD SINGH

JUDGEMENT

(1.) Second Appeals Nos. 449 and 306 of 1921 are connected. These are cross appeals by the plaintiff and defendants respectively arising out of the same suit. The plaintiff Zemindar brought a suit to recover one-fourth of the sale-proceeds together with interest, on account of a sale-deed dated the 14 of December 1916, executed by the defendants second party in favour of the defendants first party in respect of seven stops and two houses including one ruined house in the form of a chabutra or platform. The plaintiff's case was that he is the owner of the Bites of all these houses and that, under a custom which prevails in the village of Mursan where the property sold is situated, the Zemindar is entitled to claim his haq-i-chaharum. On behalf of the defendants the custom alleged by the plaintiff was denied and it was further pleaded that the inhabitants of the village of Mursan, which was alleged to be a town and not a mere agricultural village, were absolute owners of their houses and lands and had a right of sale, and it was further pleaded that the defendants had been in adverse possession of the property in suit and the plaintiff was not entitled to any relief.

(2.) The Court of first instance in a very careful and well-reasoned judgment decreed the claim of the plaintiff for recovery of one-fourth of the sale-proceedstogether with interest at 6 per tent, per annum but dismissed the claim as regards the recovery of possession. This decree was affirmed on appeal by the learned District Judge.

(3.) The plaintiff in his appeal contends that the decree dismissing his claim as to the recovery of possession was not correct. It appeals that in the Court of first instance, during the pendency of the suit as well as during the course of its hearing and arguments, it was admitted on behalf of the plaintiff that the owners of houses in this village, are also the owners of their sites and that both can be transferred by them to strangers. This admission alone is sufficient to dispose of the appeal of the plaintiffs. If the defendants are owners of the sites of the houses, it is quite clear that the plaintiff is not entitled to recover possession of those sites on their Bale. Furthermore, there is a good deal of evidence on the record which goes to show that persons whose houses have fallen down have still a right left to them to transfer the sites. It did not also appear that this platform had really been abandoned by the last occupier and bad become an ordinary piece of parti or waste land. In view of all these circumstances, both the Courts below were of opinion that the plaintiff was not entitled to get a decree for actual possession of the sites. We think that this view was correct. Second Appeal No. 449 of 1921 accordingly fails.