HAR PARSHAD Vs. LALA RADHA KISHUN

JUDGEMENT

(1.) This appeal arises out of a suit for possession of a house. The plaintiffs are the zemindars of mahal sufed in the village of Nekpur, which is a suburb of the town of Bareilly. The defendant No. 2 Baldu is an agricultural tenant residing in a house situated on the village site. On the 16 of July 1906 he sold to the defendant No. 1 Radha Kishun a two-thirds share in the house for the sum of Rs. 655-12-6 and placed him in possession thereof. Plaintiffs alleging that Baldu had no right to transfer any interest in the land, in fact had no right to transfer any thing beyond the materials of his house, sought to eject him and defendant No. 1 therefrom and to gain possession of both house and land, The suit as brought was in respect of the whole of the house. The defendant No. 1 in reply set up a custom in the village whereby a tenant is supposed to have a right to transfer not only the materials of his house but also an interest in the land, presumably a right of residence therein. The defendant No. 2 supported him in this and pointed out that he had transferred only a two-thirds share in the house and not the whole.

(2.) The Court of first instance, in a careful and exhaustive judgment held that the evidence produced by the defendant to support the alleged custom was insufficient to establish it and gave the plaintiffs a decree for possession for the site, allowing the defendant No. 1 a period of two months within which to remove the materials.

(3.) On appeal by the defendant No. 1 alone the lower appellate Court held that the custom alleged was proved by the evidence and it, therefore, dismissed the plaintiffs suit in tola. The defendant No. 2 was no party to this appeal.