DATTI LAL Vs. ABDUL HAQ

JUDGEMENT

(1.) In this case the plaintiffs are the proprietors of a mahal in village Atarauiya situated on the outskirts of the city of Allahabad. The second defendant, being the owner of a house situated in the plaintiff s mahal, has executed a deed of sale transferring the same to the first defendant. In the suit as originally framed the plaintiffs simply claimed one fourth of the sale price, on the basis of their alleged customary rights as proprietors of the soil. The plaint was subsequently amended so as to claim another relief in the alternative. This was that the defendants should be ordered to remove the materials of the house within a time to be fixed by the court and that the plaintiffs should thereupon "be put in proprietary possession of the site in question together with the kachcha-built walls." I think it worth while to lay stress at the outset on two points regarding the frame of the plaint. One is that the second relief is claimed only in the alternative, in case the first relief be not granted. The other is that the second defendant is described as "resident of muhalla Atala, Allahabad city." The defendants filed a joint written statement. They put their case in various alternative forms, and some of their pleadings come perilously near denying the title of the plaintiffs. They did, however, expressly admit that the plaintiffs are the proprietors of a certain mahal of village Atarsuiya, and that they are entitled to receive a ground rent in respect of the land in suit, calculated at the rate of Rs. 10 per bigha. Nevertheless they pleaded that the house in suit is situated in the city of Allahabad, in a particular quarter of that city which was assigned, a little more than fifty years prior to the institution of the suit, by arrangement with Government and with the local land-holders (including the predecessors in title of the plaintiffs) for the residence of a colony of butchers, and has ever since been known by the designation of muhalla Atala of Allahabad city, as stated in the plaint. They pleaded that the sites of houses in this muhalla are not subject to the same customary law as the sites of houses occupied by cultivating tenants, or members of the village community, in agricultural villages. More particularly they pleaded that they were not subject to any custom affecting the purely agricultural portion of village Atarsuiya, under which the proprietors could claim one fourth of the sale consideration on a transfer. Finally they pleaded that the owners of houses in muhalla Atala had an established right to transfer the houses themselves, and the right of residence therein, to whomsoever they pleased, and that the proprietors of the soil had no right to question any such transfer or to interfere with the owners of the houses, so long as their ground rent of Rs. 10 per bigha was duly paid.

(2.) The learned Munsif of Allahabad, before whom the suit was first tried, held that the tenure of the land in dispute (i.e., the site of the house in question) "was subject to the same incidents as the village abadi land elsewhere, and that the defendants had failed to prove anything to the contrary." He held further that a certain clause in the wajib-ul-arz of mauza Atarsuiya which recognized a right on the part of the zamindars to receive one fourth of the price, on sales of houses situated in that portion of the abadi not within the limits of Allahabad city, referred only to agricultural tenants, to which class the second defendant does not belong. On these findings he dismissed the claim for one fourth of sale price, but decreed the alternative claim for possession of the site after removal of the materials. The defendants appealed, and the plaintiffs filed cross-objections with regard to the dismissal of their claim for one fourth of the sale price. What they meant by this I find it a little difficult to understand. The plaint makes it perfectly clear that the two reliefs were claimed in the alternative. Even if it could be successfully contended on the evidence that the plaintiffs were entitled both to possession of the site after removal of the materials and also to one fourth of the sale price, it would be a complete answer that no such case was set up in the plaint. The lower appellate court in the first instance sent down certain issues for specific findings. Two of these issues relate to a very doubtful plea set up by the defendants, a plea not really consistent with other admissions in their written statement, that the land in suit had been granted to the predecessors in title of defendant No. 2 by the Government, and not by the zamindars of village Atarsuiya. In any case this point is now concluded against the defendants by an express finding of fact and was not pressed before us. The third issue remitted was in the following terms: Is the land in suit in the abadi of village Atarsuiya or in the abadi which is called in wajib-ul-arz as shahr?

(3.) On this issue there was a finding in favour of the plaintiffs, which as been finally endorsed by the lower appellate court.