QADIR BAKHSH Vs. ABDUL HAQ

JUDGEMENT

(1.) The short point, and the sole point, raised in this appeal is whether Qassabs (butchers), not being proprietors in the village but ryots, have a right of transfer in their homes and the sites thereof in the village of Garhi in the Amroha Tahsil of the Moradabad District, in which the property in suit is situated. The second and third defendants who are Qassabs sold their house with the site on which it stands to another butcher the first defendant. The zemindar has sued for a declaration that the sale is invalid and for the possession of the site by removal of the constructions. The learned Munsif dismissed the suit but the learned District Judge has decreed it.

(2.) The custom is recorded in the wajib-ularz of the village, which both parties accept but as to the interpretation of which they differ. The wajib-ularz recognises a transferable right in their houses and the sites in seven classes of persons and no others. These seven classes are Tambolis, Brahmans, Banias, Sheikhs, Saiyids, Mughals and Pathans. The first three of these are Hindus, and the remaining four" Muhammadans. The view taken by the Trial Court was that the four classes of Muhammadans specified were merely illustrative and not exhaustive, and that the custom applied to all Muhammadans whether belonging to the classes specified or not. This view is obviously untenable. The view pressed before the District. Judge and in this Court has been that all Muhammadans who are not either Saiyids, Pathans or Mughals are included under the general description "Sheikh" and that therefore, all Muhammadans are included under the four classes given. To this contention the learned Judge gives substantially three answers. He sys.

(3.) Firstly, that if it had been intended to include all Muhammadans it would have been perfectly easy to say so.