BABU RAM Vs. MOHDHASAN KHAN

JUDGEMENT

(1.) This is a second appeal in a suit for possession of materials of an ahata. The plaintiff alleged that he was the owner as zamindar of the ahata in question and that one Mohar Singh son of Prom Sukh had been residing in it as a raiyat, that on 30 March 1939 Mohar Singh made a gift to defendant 1 both of the materials of the ahata and of the right of residence without any right and without any consent of the plaintiff, and it was said that the plaintiff was entitled to recover proprietary possession over the materials and it was said that defendant 1 was in possession over these as a trespasser. The defence put forward was that Mohar Singh was a zamindar in the village and was in possession over the ahata not as a raiyat but as a zamindar. The ownership of the plaintiff was therefore denied and it was said that the ahata belonged originally to Prem Sukh whose heirs were Mohar Singh and defendant 1 who had been all along in possession and that defendant 1 was the heir of Mohar Singh and therefore was also entitled to possession of the ahata. Lastly the plea of limitation was raised, which has not been argued before me.

(2.) The learned Munsif who tried the suit was of opinion that Mohar Singh and Prem Sukh, his father before him, were in possession of the Ahata in suit as zamindars. He disbelieved the plaintiff's story of having given permission to Mohar Singh to build an ahata and he further disbelieved the evidence of abandonment by Mohar Singh and upon these findings he dismissed the suit holding that in any case Mohar Singh being the absolute owner had a right to gift away the property to his son. In appeal the learned Civil Judge has come to a number of findings which are findings of fact and cannot be contested in second appeal. While admitting that Mohar Singh was a zamindar in the year 1316F., he has come to the conclusion on the evidence that the plaintiff was the original zamindar of the land in dispute and still is and that the possession of Mohar Singh at the time of a partition in 1923 was possession as a ryat. He has further held that in 1939, Mohar Singh gifted this property to defendant 1 (Baburam) who was his brother's son's son and who would incidentally be his heir under the Hindu law. He appears to have taken the view that the mere transfer would have been an act of abandonment. But he further re-inforced this view by remarking: It is an admitted fact that Mohar Singh had gone away to Bitole and abandoned the Ahata in question. He, therefore, made a gift of the property to defendant 1 without any right.

(3.) It seems to me that the effect of these findings is that there are findings of fact that the plaintiff is the zamindar of the land in suit, and that the defendant's predecessor Mohar Singh was in possession as a ryat subject to the conditions in regard to tenant's houses embodied in the wajib-ul-arz. It is further found that during the period of his occupation as a tenant Mohar Singh transferred this ahata by gift to the defendant appellant and a question at once arose whether this transfer by itself would be sufficient to deprive the transferor Mohar Singh of his right of residence or whether it was necessary that these should have been proved to have been an actual abandonment. So far as the effect of the execution of the deed of gift is concerned, I cannot do better than quote some passages of the judgment of Allsop J. in Second Appeal No. 697 of 1933 which went before a Bench in Letters patent Appeal No. 54 of 1935, decided on 14 February 1936. The learned Judge remarked: It has been presumed in the arguments before me that the mere execution of the deed of gift was sufficient to destroy the donor's right of residence. It does not seem to me that there is any justification for a presumption of this kind. It is true that a tenant in an agricultural village in the absence of a custom to the contrary cannot transfer his house as it stands with the right of residing in it; but it is quite a different thing to say that although he cannot transfer his right that right is destroyed the moment he attempts to transfer it. In the present case it may well be that the deed of gift does not confer any title on the two donees; but it is quite a different thing to say that the mere execution of it destroys She right of the donor and transfers that right to the zamindar by way of escheat. In order that the zamindar may succeed in a case of this kind, it seems to me that he must show not only that the transferees have no right to the houses but also that the so-called transferor has no right either. If the deed is inoperative as a gift the title would not pass to the donees, but if it did not pass, it would ordinarily still vest in the donor. Where a tenant is in occupation of a house in an agricultural village the custom of the country is such that it may be presumed that he is in possession tinder a grant from the zamindars by which he is entitled to retain possession of his house so long as he keeps it in repair and continues to live in it but cannot transfer it and by which if he abandons the house and leaves the village, the site will revert to the zamindar. If a zamindar brings a suit for possession against a tenant and his transferees it is sufficient for him as against the transferees to show that they have no title, but as against the tenant himself it is necessary for him to show something more than that the tenant pur-ported to execute the deed of transfer. He must show that the tenant in some way as against the zamindar has lost his right of residence and occupation.