SAHU GOVIND PRASAD Vs. KUNDAN

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiffs for possession of certain sites in the town, of Najibabad on the ground that the transfer of these sites to the transferees was illegal, the allegation being that the transferors were the raiyats of the plaintiffs who were the zemindars of the village, The main defence was that the defendants-vendors were not the raiyats of the plaintiffs but were entitled as of right to dispose of the sites of their houses as they chose, and that the plaintiff's suit was barred, by twelve years limitation. Both Courts have found that the Muhalla of Zabtaganj, which is now a part of the town of Najibabad, belonged to the plaintiff's predecessors and that the plaintiffs, therefore, must be considered to be the Zimindars; but both Courts have also found that the so-called raiyats are not tenants of the plaintiffs and pay them no rent, and that they have exercised full proprietary rights over their houses and have transferred them freely as of right. They have accordingly dismissed the suit.

(2.) The plaintiffs in appeal really urge two points. (1) that it having, been found that they are the zemindars, according to the well-known rule which applies to agricultural, village, the tenants have not ordinarily the rights to transfer, the sites of their houses, and, (2) that in this case the evidence is not, sufficient to enable the Court to find custom in favour of the tenants.

(3.) It is proved that Muhalla Zabtaganj whatever it was originally, has for, more, than fifty years formed part of the town of Najibabad and from 1866 has been under the control of the Municipal Board, It has been laid down in, this Court that the presumptions which obtain in agricultural villages have, no application to town. We find that, on the evidence on the record it was open to the Courts below, to come to the conclusion to which they have, as to the right of the occupiers of houses to deal with sites and we think there can be no doubt as to the correctness of this, decision. The, appeal fails and is dismissed with costs. .