FATEH Vs. HAR BILAS

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought by the respondent for possession over a house by ejectment of the appellant, for a perpetual injunction restraining the appellant from interfering with the plaintiff's possession, over the house, and for future mesne profits. The trial Court dismissed the suit but the lower Appellate Court has reverse that decree and has passed a decree for possession over the house in favour of the plaintiff-respondent. The defendant has come up to this Court in second appeal.

(2.) The allegations of the plaintiff were that he was the sole zamindar of mahal 7 1/2 biswas situated in village Gopalpura alias patti Saktara, that one Dhumi, who was a Kachhi by caste, had been occupying a house within the abadi of that village as the plaintiff's ryot, that Dhumi died and his widow lived in the house after him, that the widow also has died and as Dhumi left no issue, the house reverted in law to the zamindar, and that the defendant had taken possession of the house without any title and was liable to ejectment. The defendant-appellant admitted that the plaintiff was the sole zamindar of the village, but pleaded that one Naththay was the adopted son of Dhumi, that Naththay, along with one Palua, a collateral of Dhumi, had made a usufructuary mortgage of the house in favour of the defendant by means of a registered deed dated 6 June 1928, and had put him in possession and that therefore the defendant could not be ejected. In para. 16 of the written statement, the defendant further pleaded that in this village the occupiers of houses were entitled to transfer their houses together with their sites, and that therefore the allegation of the plaintiff that the site of the house in question had reverted to him as zamindar was not correct. The defendant also alleged that the house in question was not situated within the zamindari of the plaintiff.

(3.) The trial Court held that the house was situated within the zamindari of the plaintiff, that Naththay was the adopted son of Dhumi, that the defendant had failed to prove a custom by virtue of which the occupiers of houses in this village could transfer their houses together with their sites, that as Naththay had executed a usufructuary mortgage in favour of the defendant he could not be said to have abandoned the house and that therefore the zamindar was not entitled to resume possession. Accordingly, it dismissed the suit. The plaintiff appealed to the lower Appellate Court and that Court has agreed with the findings of the trial Court as to Naththay being the adopted son of Dhumi, and as to the non-existence of any custom which could entitle the occupiers of houses in the village to transfer their houses together with their sites. It has also expressed the opinion that as Naththay had put his mortgagee in possession of the house and as the mortgagee could take care of the same Naththay could not be said to have abandoned the house. It has, however, held that as there was no custom prevailing in the village by virtue of which the occupiers of houses could transfer their houses together with the sites, Naththay was not authorized to give a usufructuary mortgage and put the mortgagee in possession and that the plaintiff was therefore entitled to succeed.