1. This appeal has been filed by Mt. Moondari and Bishunath, defendants 1 and 2. The plaintiffs and Baja Beni Madho Prasad Singh of Kantit, defendant, are impeaded as respondents. The plaintiffs filed a suit out of which the above appeal has arisen on the allegation that Sattami Ohamar was the owner of a house which was partly dilapidated and was not kept in a state of good repairs. He sold the house to the plaintiffs under a sale deed dated 12th October 1936. After the sale the plaintiffs got possession of the house. The zamindar, Raja Beni Madho Prasad Singh of Kantit, gave a lease of the site to Mt. Moondari on some date after 1936 and defendants 1 and 2, who are husband and wife, are said to have dismantled the constructions which stood on the site and started building on the same. The plaintiffs filed this suit for recovery of possession and for a permanent injunction restraining the defendants from interfering with the plaintiffs' possession in any way. The suit was resisted on the ground that Sattami Chamar had no right to transfer the house. The allegations of defendants 1 and 2 and of the zamindar were that Bindachal, where the house stands and which is within the limits of the Mirzapur Municipality, is an agricultural village and the zamindar is the owner of every inch of land and Sattami Chamar was merely his licensee and there being no custom of transferability of houses by rayayas in Bindhachal the transfer mad& by Sattami Chamar was void and ineffectual and did not convey any title to the plaintiffs. Both the Courts below held in favour of the plaintiffs and defendants 1 and 2 have filed this appeal.
2. The Courts below were to a certain extent embarrassed by reason of a decision of this Court in Gamga La;war v. Beni Madho Prasad Singh : AIR1932All52 . That case was decided by Boys and Smith JJ. and was from Bindhachal. Their Lordships held that Bindhachal was an agricultural village and the custom of transferability was not established. A reference to the judgment would show that the case had come to this Court in second appeal, and their Lordships merely affirmed the findings of the lower appellate Court which they were bound to do in second appeal as the findings were all findings of fact. That decision could not operate as res judicata and could merely be cited as a ruling on a point of law. The present case had to be decided on the evidence on the record of this case and both the Courts below having taken into consideration the constitution of the village, its history, its wajibularzes and the various transfers have come to the conclusion that Bindhachal is not a purely agricultural village and, in any case, the right of transferability of houses by the residents of the locality is established. It is argued that the question whether there is a particular custom or not in a particular locality is a mixed question of law and fact and this Court in second appeal should reconsider the evidence and decide whether the custom of transferability is proved. If I may say so, without meaning any disrespect to learned counsel, there is a certain amount of misapprehension as regards the so-called custom of transferability. I have already had occasion to say so in certain decisions that, to my mind, it could not be said that there was any question of custom involved in such matters. It is open to a landlord and to a tenant or to any person who takes land from the landlord to enter into such stipulations as regards their mutual rights as may be convenient to them, and where it can be proved in a particular case what the terms of the lease or the licence were, it is those terms that would govern the rights of the parties. It is only in cases where the terms are not established by evidence that a practice or usage in a particular locality becomes relevant to indicate what the terms might be. To my mind, just as in cases of trade usage, a usage which is well established would be deemed to be incorporated in the terms of a contract unless there was something to the contrary in the terms thereof, similarly in the absence of proof of the terms of the contract between the landlord and the tenant, the fact that in a large number of cases the tenants had taken land from the zamindar with the right of transfer or without the right of transfer may be some indication as to what the terms in that particular case were. Custom, as I understand it, has, when established, the force of law and has the same binding effect and unless the custom itself provides that it can be varied by contract no party would have the right to derogate from its terms I do not think it can be doubted that it is open to a landlord to stipulate on what terms he will give his land in the abadi for building purposes and I do not think it can be urged that the terms being contrary to the usage are invalid. Further, the argument that the question of custom is a mixed question of law and fact is also misconceived. The point arose for consideration before a Full Bench in Municipal Board, Benaraes v. Kandhaiya Lal : AIR1931All499 , and their Lordships hold that the finding that there was a particular usage would be a finding of fact, but the question whether the particular usage had developed into a custom and had the force of law would be a question of law. To my mind, it is absurd to say that these local usages amount to customs. However, that may be, the finding of the lower appellate Court is that there is a local usage giving the residents a right to transfer their houses. This finding is based on evidence and is binding on me in second appeal; and even if I had to consider whether such a local usage amounts to custom, I would have held against the appellant as learned Counsel has not been able to show why this local usage should not be deemed to be a custom binding on both the parties. Courts below have pointed out that the sale deeds on the record date back to a period of about one hundred years and they have given other circumstances which show that the usage is sufficiently old and well established and has, therefore, the force of a custom and is binding between the parties. In any view of the matter this appeal must fail and I dismiss it with costs. Leave to appeal under the Letters Patent is refused.