TIRKHA RAM Vs. PTMURARI LAL

JUDGEMENT

(1.) This is an appeal against the decision of the lower appellate Court reversing an order of the Court of first instance decreeing the plaintiffs claim. The plaintiffs- appellants are zamindars of the village Mahadeo. Tirkha Ram being the zamindar of Mahal Tirkha and Ram Prasad being the zamindar of Mahal Ram Prasad. The defendant-respondent Murari Lal is the vendee of a dwelling house situate in the village of Mahadeo and the defendants-respondents Nos. 2 to 5 were the vendors of this dwelling house.

(2.) The claim against Murari Lal and the other defendants-respondents was for possession of this dwelling house on the ground that defendants-respondents Nos. 2 to 5 had no power to sell the house and therefore could transfer no interest in it to the defendant-respondent Murari Lal. The defence to the claim was that in this village of Mahadeo there exists a custom whereby the tenants can transfer their houses to transferees. In other words they could dispose not only of the materials composing the dwelling house but also the site as well. The defendant-respondent Murari Lal relied upon a sale deed dated 12 June 1920 executed by one Har Narain deceased, the father of defendants-respondents Nos. 2 to 5. It was his contention that by reason of this custom existing in the village, Har Narain could and did transfer to him a good title to the premises, the subject-matter of the sale, and that therefore he could not be ejected by the zamindars, the plaintiffs. It should be noted here that the house in question stood partly in mahal Tirkha and partly in mahal Ram Prasad, hence both the zamindars joined to bring this claim. A point was made in the lower Courts that such joinder of the plaintiffs was improper, but no point is taken before me and it is stated that it has been abandoned.

(3.) In an agricultural village the presumption is that the zamindars own the whole of the village including the sites upon which the tenants houses have been built. The tenants are only the owners of the materials with which the houses have been constructed and apart from some special custom the sites remain the property of the zamindars. Prima facie therefore a tenant cannot transfer a dwelling house and the site upon which it is built unless of course there is some custom legally binding on the parties which gives the tenant such a right. The allegation, in this case is that in the village of Mahadeo there is such a custom, but clearly the onus of establishing that custom rests upon the tenant.