RAFI-ULLAH KHAN Vs. MTMUMTAZ BEGUM

JUDGEMENT

(1.) The question to be decided in this appeal is whether the defendants- respondents have or have not a right to sell a house in an area which has been described as Mauza Ahmadpur Niazpur or as Mohalla Ahmadpur appertaining to the town of Shahjahanpur. The suit has lasted since the year 1917 and the first decision of the learned Munsif in that year was that the area in which this house is situated is, technically speaking, an agricultural village although it has been included in the Municipal area of the town of Shahjahanpur. There is no explicit finding by any Court that this is not the case, although it appears that the lower appellate Court has taken the view that because the Municipalities Act has been extended to this mauza, the zemindar is thereby precluded from claiming those rights over the land on which the houses of the raiyats stand, which are admitted to be the universal rights of the zemindars in this province. We are not prepared to agree with this view of the learned lower Court, and we are of opinion that this is a case in which the ordinary law of this province must be held to apply unless the respondents are able to prove that they received some title in the house in suit other than that of ryots in an agricultural village. When the suit was originally brought, the defence raised was that the defendants were the owners of the houses, but the defence did not explicitly state how that right of ownership was acquired. After the suit was remanded by this Court in 1920 the defendants were allowed to raise an issue as to custom.

(2.) In appeal we have been asked to consider that this issue should not have been raised at so late a stage, but we are not prepared to agree with the learned Counsel for the appellants on this point. The very basis of the plaintiff's suit is a custom and it is only by establishing a counter-custom that the suit could be successfully met. The lower Court has held that the defendant has proved the existence of a custom which would permit the sale which is now in dispute. Undoubtedly the defendants have been able to adduce a number of examples of sales and mortgages by persons who appear to have been in the same or in a similar position to the vendor in the present case. It is not proved that the position of these vendors and mortgagors in the past was actually the same, and it must be pointed out that in this village there are a number of persons known as bazyaft holders who are allowed by custom to sell their houses and the sites of these houses. The learned lower appellate Court considers that this is a point much in favour of the vendor in the present case because he is himself a holder of a plot of resumed muafi, but that is not the plot in suit, and we cannot follow the lower appellate Court in holding that, because a man is the holder of muafi plot and is entitled to sell a house which he owns by virtue of that title, he is thereby entitled also to sell a house and site quite separate from the plot in which he holds the muafi rights.

(3.) There is one consideration also which affects the conclusion drawn by the lower appellate Court from the numerous sales and mortgages which have just been detailed, and that is that there have been several cases fought out in connexion with this very village and in more cases than one the decision has been in favour of the zemindar and the sales have been set aside. In our opinion these judicial decisions go far to rebut the evidence as to custom contained in the sale- deeds and mortgages which have been produced by the respondent.