SYED TAJAMMUL HUSAIN Vs. BANWARI LAL

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for ejectment on the ground that the plaintiff is a zamindar of the village and the contesting defendant is a person who has without any right purchased a house in the village and is occupying it. The pleas raised in the written statement were that the defendant- vendor was the owner of the house and was entitled to transfer it. There was also a further plea that in this village under a custom the occupiers of houses were entitled to transfer their houses.

(2.) Both the Courts below came to the conclusion that the evidence produced by the defendant did not establish a custom having the force of law. They accordingly decreed the claim. On appeal a learned Judge of this Court has come to a contrary conclusion. We may note that there was another suit instituted by other zamindars of this village against other transferees which had however been dismissed by the Courts below. A second appeal was preferred in this Court in that case and at the instance of the learned Counsel for the appellant who was also counsel for the appellant in the other case the two appeals were connected together and were ordered to be put up for hearing together. At the time when these two connected appeals came up for disposal the learned Judge of this Court referred to the evidence on the records of both the cases inasmuch as both related to the same custom in the same village and disposed of the two appeals by one judgment. There were altogether 91 sale-deeds produced by the defendant in the connected appeal and 35 sale-deeds were on the record of the present case. He found that the custom was established, but that the defendants had no proprietary right in the site and were mere raiyats without adverse possession.

(3.) Although the findings of the lower appellate Court so far as they are findings of fact are binding in second appeal nevertheless it is open to a Court in second appeal to consider whether the evidence which has been found to be proved and instances which have been established do or do not establish a custom having the force of law. In the present case the plaintiff relied on an entry in the wajib-ul-arz of the year 1872 as wall as on a judgment of the year 1912 and three compromise decrees besides certain oral evidence, The defendant on the other hand relied on a judgment of the year 1865 as wall as a large number of sale-deeds of houses by occupiers in favour of decree zamindars or strangers.