YASHPAL SINGH Vs. JAGANNATH

JUDGEMENT

(1.) This is an appeal by the defendants against whom a suit for demolition, possession and injunction has been decreed by the Courts below. The defendants are admittedly the zamindars of the village. The plaintiffs are auction-purchasers of the house in execution of a decree against a tenant. The village in dispute Jarar is a populous village in the district of Agra. The case of the plaintiffs was this: The plain, tiffs were the owners in possession of the house in suit; to its south lay the dilapidated house belonging to one Dhanna Lohar and in the beginning of August 1939, the defendants began to dig foundations and make constructions on the plot. In making these constructions, the defendants, the plaint proceeds, encroached upon the plaintiffs house without any right or title. They are also charged with having demolished a portion of this house. Then follow the details of the encroachments. The defendants refute the allegations of encroachment or demolition. Their case principally was that the house in dispute and the one lying to its south originally belonged to one and the same person and that later on, after partition the house in suit was separated, but they still maintained a joint wall. They also challenged the plaintiffs right to the house in suit which had, according to the written statement, been given to the ancestors of the blacksmiths with no right of transfer. The auction sale in favour of the plaintiffs was repudiated. The question which, therefore, falls for our consideration, is whether the plaintiffs acquired any right at the auction sale. This involves the question of the character of the village as also of the custom prevailing in it.

(2.) The learned Civil and Sessions Judge came to the conclusion that Jarar is an agricultural village, but the custom recognising the right of the tenant to transfer his house was established. He held that the plaintiffs had succeeded in establishing only a few of the encroachments complained of and to that extent he decreed the suit. This judgment was substantially affirmed in appeal by the learned Additional District Judge of Agra. A large number of mortgage and sale-deeds were produced by the tenants. They will have to be considered, but the first and the most important document must needs be the wajib-ul-arz. The learned Judge had interpreted it in favour of the plaintiffs. If on a true interpretation, it bears out the plaintiff's case, the evidence furnished by the deeds will be greatly reinforced. If, on the other hand, it supports the defendants and cuts across the deeds, we shall have to consider whether the evidence furnished by them is enough to outweigh the presumption in favour of the zamindar that he alone is the owner of the village and the tenant has, 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, roofing and woodwork of the house" : vide Sri Girdhariji Maharaj V/s. Chhote Lal ( 98) 20 All. 248.

(3.) The questions which generally arise in such class of cases were considered at great length in the Full Bench case in Hafiz Mohd. Ahmad Saeed Khan V/s. Shiam Lal , to which one of us was a party. Before dealing with the wajib-ul-arz, it is necessary to discuss the character of the village. The learned Counsel for the respondents contends that Jarar is not an agricultural village and relies upon the following extract from the District Gazetteer of Agra by Nevill; Jaeab? Tahsil Bah. A village situated in 26? 52 N. and 78? 34 E, at a distance of two miles west from Bah and a little to the south of the road from Agra to Etawah. In 1881 it contained 3400 inhabitants, but at the last census the population had fallen to 2,986, of whom 259 were Musalmans; the principal castes are Banias, Brahmans and Rajputs, who together own the village, which is divided into a large number of shares. The place contains an upper primary school, a branch post-office, and a bazar in which a considerable trade in grain and other merchandise is carried on, while twice a week there is a large cattle market. The village has a total area of 4095 acres, of which some 3530 acres are cultivated, and the revenue is Rs. 4870.