John Edge, C.J. and Burkitt, J.
1. This appeal has arisen in a suit brought by the zamindar against the occupiers of a house in the abadi of his village and against one Ghote Lal, who purchased at auotion-sale under a decree against the occupiers such rights as the occupiers had in the house. The occupiers made no defenoe to the suit. Chote Lal only has defended the suit. The plaintiff alleged a special agreement under which the house had been originally built; he also relied upon the wajib-ul-arz. He did not specifically set up in his plaint, or apparently in his argument before our brother AlKMAN in this Court, the real point on which this case must be decided, and that is that, according to the general and well known custom of these Provinces, a custom so well established that it may be treatedas the common law of the Provinces, a person, agriculturist or agricultural tenant, who is allowed by a zamindar to build a house for his occupation in the abadi, obtains, if there is no special contract to the contrary, a mere right to use that house for himself and his family so long as he maintains the house, that is, prevents it 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 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 wood-work of the house. There is good reason why such a custom should have grown up and have been established. If it were otherwise, agricultural tenants or cultivators who, for the purposes of the cultivation of the agricultural lands of the village, were permitted by the zamindar to build or occupy a house in the abadi of the particular village might sell the right to occupy the house to some person unconnected with the cultivation of the agricultural land in the village, and thus in course of time the abadi provided and reserved by the zamindar for the use of those cultivating his lands would come to be occupied by persons in no way connected with the cultivation of the agricultural lands in the village. In such a case the zamindar would practically lose his rights in the abadi and would be compelled to restrict the area of-culturable land in the village so as to provide sites for fresh houses for agriculturists. It might happen that a purely agricultural village, every single site in the abadi of which belonged to the zamindar solely, might come to be avillage, for example, of weavers, who neither paid rent to the zamindar nor promoted the cultivation of the agricultural lands of the village.
2. It is contended that it was for the plaintiff to prove a special contract. In our opinion the plaintiff had only to rely on the common custom of the Provinces, and it was for the auction-purchaser, who alone defended this suit, to show that there was some special contract between the zamindar and the person or the predecessor of the person whose interest he had bought which created, contrary to the general custom, an interest which might be attached and sold in execution of a decree against the occupier. If the defendant, auction-purchaser, had set up, not a special contract, but a local custom of the village in question by which an occupier of a house in the abadi, holding under no special contract, but merely occupying a house the site of which belonged to the zamindar, could sell his right to occupy or have it sold for him in execution of a decree against, him, we should be prepared to hold that such a special custom was bad.
3. Our attention has been drawn to the decision of this Court, Narain Prasad v. Dammar Weekly Notes 1888 p. 125. So far as that decision is based upon an assumption that, apart from special contract, the occupier of a house in the abadi under the zamindar has any interest in the occupancy of that house which can be sold privately or by auction sale we entirely dissent from it. The occupier's right is a mere personal right of residence. The other case to which we have been referred is Chajju Singh v. Kanhia Weekly Notes 1881 p. 114. There the Fall Bench held that the zamindars of a village are, as a rule and presumably, the owners of all the house sites in the village, and that a house left unoccupied by a tenant lapses to the landlord in the absence of heirs or of other lawful assignees of the last occupier. 'Other lawful assignees' must not be understood to mean purchasers by private or auction-sale from such occupier.
4. Chote Lal, the only defendant defending this suit, has made out no case. This appeal must be allowed. We give the plaintiff a decree declaring that the occupiers of the house had no right, except to the timber, the wood-work and the roofing, which could be sold in execution of a decree against them, that a right to occupy the house was not transferable by sale either private or in execution of a decree, and a decree that the plaintiff be put in possession of the site claimed. Chote Lal will be allowed thirty days from the notification of this decree in the Court below to remove such of the materials of the house as were not part of the land; that is, he cannot remove the walls of the house if they are constructed of soil belonging to the village. We allow this appeal with costs in all Courts.