RAO GIRRAJ SINGH Vs. LALA HARGOBIND SAHAI

JUDGEMENT

(1.) IN the suit out of which this appeal has arisen the plaintiffs claimed to have a sale-deed, executed and registered on the 12 of January 1900, set aside as being void and also on account of breach of conditions on the part of the defendant's possession of a certain house. The house in question is situate in the village of Badhsana in the Meerut District. That village belongs to the plaintiffs who are the zamindars. The defendant No. 1 Hargovind Sahai was a tenant of the plaintiffs, and he sold the house in question and the site of it to the defendants Nos. 2--5. The plaintiffs allege in their plaint that the defendant No. 1 constructed the house in dispute with the permission of the plaintiffs and that under the terms of the wajib-ul-arz of the village no ryot was entitled to sell, or mortgage, or make a gift of any house or enclosure in the village and that despite this provision of the wajib-ul-arz the defendant, without the permission of the plaintiffs sold the house in question to Bansidhar, the ancestor of the defendants Nos. 2--5. The Court of first instance dismissed the plaintiff's claim, being satisfied on the evidence that a custom prevailed in the village whereby tenants were empowered to sell their houses and the site of them so long as the houses stood. On appeal the learned Additional Judge found that the custom alleged by the defendants was fully established by a great mass of evidence including a large number of deeds of sale and mortgage. He was of opinion that the wajib-ul-arz on which the plaintiffs relied was prepared at the instance of the zamindar and, therefore, did not embody the custom prevailing in the district. Accordingly in his decree of the 28th of May 1907 be upheld the decree of the Court below, save that he declared that the sale of the enclosure does not affect the land in any way". An appeal was preferred to this Court and upon the hearing of it the Court was at a loss to understand what the modification in the decree of the Court below meant and accordingly allowed the hearing to stand adjourned so that the parties might have an opportunity of applying to the Court below to frame a decree in conformity with the findings in the judgment. This has been done and the learned Additional Judge has in pursuance of the application of the parties passed an order to the effect that the transfer of the house in question was limited to the sale of the materials of the house and the right of residence only and he directed that this modification should be made in his decree. The case now comes before us for final determination. Whether or not a custom prevails in this village whereby the tenants of houses are empowered to sell the materials of their houses and the sites of the houses so long as the houses are standing, is no doubt to some extent a question of law. This Court has jurisdiction to consider the evidence given in support of such a custom and determine whether or not that evidence is sufficient in point of law to establish a custom. This was as pointed out by our brother Richards in the case of Hashim Ali V/s. Abdul Rahman 28 A. 698; 3 A.L.J. 467; A.W.N. (1906) 187. IN the case of Ram Bilas V/s. Lal Bahadur 30 A. 311; A.W.N. (1908) 112; 5 A.L.J. 456; 4 M.L.T. 169 a Full Bench of this Court, of which one of us was a member, held that where a question arises as to the existence or non-existence of a particular custom and the lower appellate Court has acted upon illegal evidence or on evidence legally insufficient to establish an alleged custom the question is one of law and, the High Court is entitled, in second appeal, to consider whether the finding is based on sufficient evidence. IN the case before us the appellants did not raise any question in their grounds of appeal as to the sufficiency of the evidence upon which the decree of the Court below are based. We think that a custom such as is sought to be set up in this case ought to be established by clear and cogent evidence. The Courts below examined a great number of documents, both sale- deeds and mortgages; and in addition to these they had before them decrees including a decree of this Court in which the right claimed was recognised. A mass of evidence was adduced in support of the alleged custom. IN view of the evidence we are not prepared to say that the decision of the Courts below that the custom set up does prevail was based on insufficient or on illegal evidence and, therefore, we do not see our way to reverse it. According to that custom a tenant occupying a house in the abadi of the village is entitled to sell the materials of his house and also the right to occupy the site of the house so long as the house is standing. We, therefore, declare that the sale-deed of the 12 of January 1900 is valid and binding so far as it purports to transfer to the vendee the materials of the house in question and the right of residence in that house so long as it stands. Beyond this the transferee has acquired no interest in the property. The appellants have substantially failed and must bear the costs of this appeal as also the costs in the Courts below.

(2.) OBJECTIONS have been filed but are not pressed. We dismiss them but without costs.