ZABARSING Vs. BHAGWANSINGH

JUDGEMENT

(1.) THIS second appeal arises out of a suit by the plaintiffs against the malguzar for possession of a house-site and the house situated thereon in a village. They claim as transferees of the original owner, to whom they are related by purchase in the year 1927 consequent on a mortgage executed in their favour of the same property in 1921. The claim is resisted on the ground that Ghisaji, the original owner, had abandoned the village and had left the house deserted and that by the terms of the wajib-ul-arz the malguzar was, unless there was an agreement to the contrary, entitled to the ownership of vacant houses after they had been abandoned for two years and he claimed to be in possession accordingly.

(2.) THE only point which arises in second appeal is whether this clause in the wajib-ul-arz is overriden by Section 203(3), Land Revenue Act of 1917 where in it is provided that, although a person who holds a site is incompetent to transfer it except to his next heir or to a person entitled to a site and not already in possession of one, the materials of any such house are transferable. The point is one which really does not arise at all since there is no conflict. It has been found as a fact that Ghisaji abandoned the village more than 10 years ago and that he has no cultivation therein and has not resided therein. Sub-section (3), Section 203, Land Revenue Act is therefore inapplicable to Ghisaji. Any rights which he had under Sub-section (1) have been vacated under Sub-section (2) and it is laid down by Macnair, A. J. C. in Mt. Ranibahu v. Narayanrao that Sub-section (2) is not limited in its applicability to cases where the right is forfeited on certain contingencies arising, but can also include forfeiture of existing rights. When the sale took place Ghisaji no longer had a right to a site in the village; he was a mere licensee and liable to ejectment at any time. He sold what he did not possess and Sub-section (3) and its proviso are not applicable. The materials of the house, would have been transferable in the case of a transfer made by Ghisaji while he held the site, but the proviso is limited to the Sub-section to which it is attached and cannot be extended to operate as a general provision of law. Under the terms of the wajib-ul-arz the malguzar is entitled to derelict houses after two years. Houses would not become direct unless they had been abandoned, and on a forfeiture of the right to a site in the village. The result is that the malguzar was entitled to the house-under the terms of the wajib-ul-arz. There is no need to discuss the other points raised by the learned Advocate for the respondent regarding the applicability of Section 203(8) and Article 49, Lim. Act. The appeal fails and is dismissed with costs.