DR SIR HAFIZ MOHD Vs. SHIAM LAL

JUDGEMENT

(1.) The facts which have given rise to this appeal are briefly these : The village in dispute is Chhatari in the District of Bulandshahr. It has extensive abadi which is divided into houses and shops. They are occupied by ryots who pay rent only for the shops and not for residential houses. The plaintiff is admittedly its sole zamindar. Shiam Lal, defendant 1 and his two sons Shiva Shankar alias Sallo and Baldeo Shankar alias Ballo, defendants 2 and 3, are his sons. Defendant 4 is the son of the brother of Shiam Lal. The first three defendants occupy a house in the abadi of mauza Chhatari. They do not, however, pay any rent or other dues to the plaintiff. The plaintiff came to Court with the following allegations : The defendants lived in the abadi of mauza Chhatari as ryots and were entitled to use and occupy the said house for residential purpose only, he being the owner of the site of the house. The plaintiff went on to say that the defendants, who were members of a joint Hindu family, were occupying the house, the materials of which were supplied by the plaintiff's ancestors to the ancestors of the defendants and so he was also the owner of those materials. He further went on to say that under the terms of the wajib-ul-arz ryots paid no rent for the occupation of residential houses but did pay rent for the use and occupation of the shop and that in the month of January 1939 the defendants wrongly and without his permission, converted their residential house into a shop. The relief claimed, stripped of unnecessary details, was the ejectment of the defendants or for an injunction directing restoration of the house to its, original condition and recovery of damages or for an order fixing the defendants with the liability to pay Rs. 5 per month as rent. The case was based on the wajib-ul-arz, contract and usage. The defence, in the main, of defendants 1 to 3 was that they were entitled to use and occupy the house without any restriction and that-the materials of the house were not supplied by the plaintiffs or his ancestors. It was also pleaded that no ground rent was payable by the ryots for their house and that the entry in the wajib-ul-arz did not apply to shops built by ryots or to those shops which formed part of the residential house. It was further pleaded that the wajib-ul-arz related to the shop in existence at the time of the settlement when it was prepared and not to the shops which had come into existence subsequently. Lastly they refuted the charge that they used any part of the house as a shop; all that they had done was to use it as a godown for the stock in trade; they denied the contractor usage forbidding the use of the house as a stock room or as a godown or forbidding any transaction of business at the residential house of the ryots. The validity of the contract and usage, assuming that they had been proved, was challenged on the ground that they were opposed in public policy and forbidden by law. The applicability of the wajib- ul-arz to Chhatari which had been declared a town area under the Town Area Act, was also impugned. Acquiescence and estoppel were also pleaded. And finally the bar of Section 56, Specific Relief Act, was set up as against the relief for an injunction.

(2.) The learned Munsif held that the village Chhatari did not lose its character of an agricultural village; that, under the general law of the province, the plaintiff, as zamindar of Chhatari, was the owner of the site of the house and the defendants were licensees for residential purposes, and under the terms of the wajib-ul-arz, the use of the house by the defendants for any purpose other than residential, amounted to an infringement of the plaintiff's right. He also found that in a part of the house defendants 1 to 3 were storing goods for retail sale and another part was being used as a shop. On these findings the learned Munsif decreed the suit for an injunction restraining the defendants from using the house as a shop. In his opinion rupee one per month was a fair quantum of damages for the use of the part of the house as a shop. Defendant 4 was treated as an unnecessary party. Defendants 1 to 3 went up in appeal. The learned Civil Judge found that mauza Chhatari had ceased to be an agricultural village. He held further that the materials of the disputed house were not supplied by the plaintiff. In his opinion the conversion of the residential house into a shop was not in contemplation of anybody at the time of the Currie Settlement when wajib-ul-arz was prepared. He also found that the defendants were not using the disputed portion of the shop for retail sale but as a godown and, in so doing, they were within their rights. The wajib-ul-arz, to his mind, did not apply to the disputed portion of the house even if converted into a shop, inasmuch as it applied only to those shops which were in existence at the time of the Currie Settlement. His findings on the question of custom and contract were against the plaintiff. He finally came to the conclusion that the Bengal Chaukidari Act and the U.P. Town Area Act had completely altered the position of the village and had the effect of destroying its agricultural character.

(3.) The plaintiff has come to this Court in second appeal. It might be stated at the very outset that he has not claimed the reliefs with which he had originally come to Court. He only wants the decree of the Court of first instance to be restored. It is desirable to describe the present condition of mauza Chhatari. To quote the learned Munsif "the population of Chhatari is 5435 ? the learned Civil Judge has put it at 5500 ? and 75% of this population consists of people of the agriculturists class. Nobody has stated that there is any industry or even a mill or factory in Chhatari. Ofily one person has cafce forward lo say that he makes locks and sells them in Allgarl. The bazar is mostly for agricultural produce or for the supply of other articles of daily necessity. No railway line even is near Chhatari." No exception to this description has been taken by the learned Additional Civil Judge. The bedrock of the case law in this Court is the well-known case in Sri Girdhari Ji Maharaj V/s. Chhote Lal ( 98) 20 All. 248. Its facts briefly were these : "The plaintiff Sri Girdhariji Maharaj came into Court alleging that about 26 years previously one Nand Kishore had received from his, the plaintiff's agent, permission to build a house on a piece of land in the village of which the plaintiff was zamindar, on the condition that it should be inhabited by Nand Kishore and his heirs and alleging further that the house which was built could not legally be transferred. The plaintiff also relied upon a, clause in the wajib-ul-arz. The house so built by Nand Kishore was bold in execution of a decree against a son of Nand Kishore and purchased by one Chhote Lal. The plaintiff zamindar asked for a declaration of his right to the land on which the house stood. He also claimed to be put in possession of that land after the removal of the materials of the house by the purchaser." The agreement set up failed but their Lordships at p. 250 made the following observations : "The plaintiff alleged a special agreement under which the house had been originally built. He also relied upon the wajib- ul-arz. He did not specifically set up in his plaint or apparently in his argument before our brother Aikman in this Court, the real point on which this case must be decided and that is that, according to the general and well known custom of these Provinces, a custom so well established that it may be treated as the common law of the Provinces, a person, agriculturist or agricultural tenant, who is allowed by a zamindar to build a house for his occupation in the abadi obtains, if there is no special contract, a mere right to use that house for himself and his family so long as he maintains the house, that is, prevents its falling down and so long as he does not abandon the house by leaving the village. As such occupier of a house in the abadi occupying under the zamindar, as in this case, he has, unless he has obtained by a special grant from the zamindar an interest which he can sell, no interest which, he can sell by private sale or which can be sold in execution of a decree against him, except his interest in the timber, 1 roofing and wood-work of the house." The zamindar in these provinces treats the above lines as the charter of his rights. The ryot, on the other hand, replies that they do not amount to anything more than a mere dictum that the zamindar is the owner of the land, a presumption which grows weaker and weaker with the march of time. To the zamindar these lines embody a rule of law, which assures him his rights, unless its binding character is taken away by some express enactment, in express and unmistakable terms. To the tenant they amount to nothing more than a presumtion, the binding force of which has been destroyed either by the process of time or by the Notified Area Act.