1. This is an appeal by the defendants against whom a suit for demolition, possession and injunction has been decreed by the Courts below. The defendants are admittedly the zamindars of the village. The plaintiffs are auction-purchasers of the house in execution of a decree against a tenant. The village in dispute Jarar is a populous village in the district of Agra. The case of the plaintiffs was this: The plain, tiffs were the owners in possession of the house in suit; to its south lay the dilapidated house belonging to one Dhanna Lohar and in the beginning of August 1939, the defendants began to dig foundations and make constructions on the plot. In making these constructions, the defendants, the plaint proceeds, encroached upon the plaintiffs' house without any right or title. They are also charged with having demolished a portion of this house. Then follow the details of the encroachments. The defendants refute the allegations of encroachment or demolition. Their case principally was that the house in dispute and the one lying to its south originally belonged to one and the same person and that later on, after partition the house in suit was separated, but they still maintained a joint wall. They also challenged the plaintiffs' right to the house in suit which had, according to the written statement, been given to the ancestors of the blacksmiths with no right of transfer. The auction sale in favour of the plaintiffs was repudiated. The question which, therefore, falls for our consideration, is whether the plaintiffs acquired any right at the auction sale. This involves the question of the character of the village as also of the custom prevailing in it.
2. The learned Civil and Sessions Judge came to the conclusion that Jarar is an agricultural village, but the custom recognising the right of the tenant to transfer his house was established. He held that the plaintiffs had succeeded in establishing only a few of the encroachments complained of and to that extent he decreed the suit. This judgment was substantially affirmed in appeal by the learned Additional District Judge of Agra. A large number of mortgage and sale-deeds were produced by the tenants. They will have to be considered, but the first and the most important document must needs be the wajib-ul-arz. The learned Judge had interpreted it in favour of the plaintiffs. If on a true interpretation, it bears out the plaintiff's case, the evidence furnished by the deeds will be greatly reinforced. If, on the other hand, it supports the defendants and cuts across the deeds, we shall have to consider whether the evidence furnished by them is enough to outweigh the presumption in favour of the zamindar that he alone is the owner of the village and the tenant has,
a mere right to use that house for himself and his family so long as he maintains the house, that is, prevents its 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 a 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 woodwork of the house' : vide Sri Girdhariji Maharaj v. Chhote Lal ('98) 20 All. 248.
3. The questions which generally arise in such class of cases were considered at great length in the Full Bench case in Hafiz Mohd. Ahmad Saeed Khan v. Shiam Lal : AIR1944All177 , to which one of us was a party. Before dealing with the wajib-ul-arz, it is necessary to discuss the character of the village. The learned Counsel for the respondents contends that Jarar is not an agricultural village and relies upon the following extract from the District Gazetteer of Agra by Nevill;
Jaeab? Tahsil Bah.
A village situated in 26 52' N. and 78 34' E, at a distance of two miles west from Bah and a little to the south of the road from Agra to Etawah. In 1881 it contained 3400 inhabitants, but at the last census the population had fallen to 2,986, of whom 259 were Musalmans; the principal castes are Banias, Brahmans and Rajputs, who together own the village, which is divided into a large number of shares. The place contains an upper primary school, a branch post-office, and a bazar in which a considerable trade in grain and other merchandise is carried on, while twice a week there is a large cattle market. The village has a total area of 4095 acres, of which some 3530 acres are cultivated, and the revenue is Rs. 4870.
4. There are, however, concurrent findings by the Courts below that it is an agricultural village. The learned Civil Judge has given weighty reasons for arriving at his conclusion. Says he:
Regarding the agricultural or non-agricultural character of this village the plaintiffs have given a very general evidence which merely amounts to that the population of this village is 6,000 or 7,000 and that most of the residents are shop-keepers and do not cultivate fields. They have not given any particular evidence regarding the number of pucca and kachcha houses, the number and nature of the shops in the village and if the presence of these shop-keepers was independent of or was necessary for the village cultivators.
5. The portion italicised is only a reiteration of the principle laid down by Banerji J., in Incha Ram v. Bande Ali Khan ('11) 33 All. 757.
In the case of an agricultural tenant or a handicraftsman or trader whose presence is necessary for the requirements of the village....
6. The case in Mohd. Fazalur Rahman v. Nand Kishore : AIR1945All140 , will therefore have no application. We shall proceed upon the assumption that the village is an agricultural village and the wajib-ul-arz must, unless outweighed by other evidence, hold the field. But the 'other evidence' must be of a strong character, inasmuch as the probative value of the wajib-ul-arz has always been accepted to be very high. Their Lordships of the Judicial Committee in Balgobind v. Badri Prasad ('23) 10 A.I.R. 1923 P.C. 70 have made this matter quite clear:
Settlement Officers in recording customs in wajibularzes have to perform duties which the Government orders them to perform. One of these duties was to record customs as the Settlement Officer found them and not as he might' think they ought to be. When it is not shown by reliable evidence that the Settlement Officer neglected to perform his duty or was misled in recording a custom, and it does not appear that the statement of the custom is ambiguous, the record in a wajibularz of a custom is most valuable evidence of the custom, much more reliable evidence than subsequent oral evidence given after a dispute as to the custom has arisen.
7. The ground being thus cleared, we have to interpret the particular wajib-ul-arz. The Courts below have interpreted it in favour of the respondents. The vernacular runs thus: 'Aur riyaya apne makan men rahta hai. Na usko nikalne ka na ukho rehan bai ka akhtar nahin hai.' The learned Civil Judge summed up his finding on this point in these words:
Unfortunately these wordings are very ambiguous. They can either mean that the zamindars have no right to eject the riyaya from houses built by them and that the zamindars cannot alienate such house, or that the riyaya cannot alienate them. If the above sentence is read along with the preceding ones the first explanation appeals to me much more than the second one. In that case there is no entry in the village wajibularz that the riyaya cannot alienate their houses built by them; and the entries in the wajibularz become favourable to the plaintiffs. In the latter case the custom in writing is in favour of the defendants and the burden of proof shifts on to the plaintiffs.
8. The learned Additional District Judge has agreed with him. We are, however, not at one with them. It is true that the wajib-ul-arz is not artistically drawn up.
The Courts below are right when they say that it is ambiguous and its language obscure. If it is so, settled and accepted legal principles must be allowed to throw light on its obscure corners and it is in such light that it must, like all other deeds, be read and interpreted. The zamindar is and has, from time immemorial, been treated as the owner of the land and the ownership carries with it the legal right to sell or mortgage. The clause prohibiting transfer must, therefore, refer to the tenant and not to the zamindar.
9. We now come to the other evidence on the record. The Courts below have rejected the oral evidence of the parties; the documentary evidence alone has therefore to be considered. The plaintiffs produced 60 documents relating to the transfer of houses and shops. Of these, five were executed by the zamindar and these cannot afford any guide for the determination of the question in issue, inasmuch as the law draws a clear distinction between the rights of a zamindar and those of a riyaya or tenant. In 1935 Kanhaiya Lal v. Sheva Lal : AIR1936All14 , Sulaiman C.J. put the matter very clearly when he says:
We consider that a distinction should be drawn between the position of persons who have been zamindara and who in their capacity as zamindars own houses and the position of persons who are mere ryots. In the case of a mere ryot the zamindar grants a licence to the ryot to make a residence. Such a licence remains a licence and the ryot has not right of transfer of the house which he makes in pursuance of such licence. But a house built or bought by a zamindar is a transferable house and such rights of transfer do not cease when the zamindar loses his rights in the village.
10. Of the remaining 55, one was a simple mortgage and that too cannot afford a proper guide. Of the rest, 17 relate to transfers during the last 12 years. On the principle laid down by us in Bisheshar Dayal v. Chheda Lal ('45) 32 A.I.R. 1945 All. 439 they are still defeasible and must be rejected. Some other documents have also been rejected by the Courts below. They have, however, based themselves upon 32 documents which are old, older than 12 years. Of the rest they are one a usufructuary mortgage and 11 sale deeds of houses, five usufructuary mortgages and 15 sales of shops.
11. The learned Counsel for the respondents contends, on the authority in Faiyaz Ali v. Rekhab Das ('21) 8 A.I.R. 1921 All. 46 that:
A custom obtaining in a village under which a ryot can transfer his house with a right of residence is not a bad custom or a custom of such a nature that it should not be recognised and enforced by law.
Where, in support of an alleged custom by which tenants in a village could transfer their houses, several sale deeds and sale certificates evidencing such transfers were produced, besides other evidence, held that it was for the zamindar to explain them away and to show under what circumstances those transfers were made, and that they were such as could in no way prove the custom.
12. He also relies upon Tajammul Husain v. Banwari Lal : AIR1926All43 and Mt. Sadhant v. Mahesh Pratap Narain Singh ('42) 29 A.I.R. 1942 Outh 401 and contends that the instances given by him are enough to establish the right of the tenant to transfer his house. He also contends, on the authority of Narain Singh v. Net Ram : AIR1940All535 , that the finding of the lower appellate Court in favour of the respondents is a finding of fact and should not be disturbed in second appeal. It does not appear that the attention of the learned Judges was invited to Alif Khan v. Wajid Ali : AIR1933All306 , which is a clear authority for the proposition that 'the question whether a prevailing practice has the essential attributes of a legally binding custom is a question of law' or to the case in Nathwa v. Raghubans Narain Singh : AIR1934All890 , which holds that:
Where the lower appellate Court finds that certain instances have been proved in which the alleged custom has been followed or recognised, but such instances are not sufficiently numerous or ancient or uniform to constitute a custom modifying the ordinary law, then in such a case a question of law arises in second appeal and the High Court is entitled to weigh the whole evidence and come to its own conclusion whether the lower appellate Court had rightly decided that the alleged custom had not been proved.
13. The present is only a converse case. We are, therefore, entitled to see whether the evidence produced by the plaintiffs is enough to outweigh the evidence furnished by the wajibularz. There is, however, one aspect of the matter which has, if we may say so with great respect, either failed to receive any attention or if it did it failed to receive the weight it was entitled to. In Incha Ram v. Bande Ali Khan ('11) 33 All. 757 noticed above, Richards C.J., made the following observation:
If it were held that the moment any person who was not an agriculturist or village trader began to occupy a village site without the express permission of the zamindar, he began to acquire a title against the zamindar, the position of the latter would be well-high intolerable, and he would be driven to perpetually harass the occupiers of the village to the detriment of the whole village community.
14. The above means, if anything, that there should be no general presumption against a zamindar if he does not bring a suit for ejectment against a stranger purchaser. There may be so many reasons for his inaction - the house sold may be of a very small value, the purchaser may not be an undesirable person, or the zamindar himself may not have the wherewithal to launch a litigation, We are now left to consider the question of the effect of the 85 documents, which are more than 12 years old. The learned Additional District Judge has summed up his finding in these terms:
The defendants had admittedly taken no steps to contest any of the transfers which are more than 12 years old. It is obvious that these transfers, therefore, go a long way towards proving the custom alleged by the plaintiffs. The other important item of documentary evidence is the wajib-ularz of the village.
15. The learned Judge then discusses the terms of the wajibularz and comes to the conclusion that they are in favour of the plaintiffs. On the effect of the wajibularz and the deeds of transfer he expresses himself in these terms:
Learned Counsel for the appellant contends that the sentence means that the zamindars have no right to eject the riyaya and the riyaya has no rights to mortgage or sell the house. In view, however, of the large number of sale deeds and mortgage deeds on the record which prove that from 1853 right up to the present time the riyayas have in fact been selling and mortgaging their houses and shops, I would hold that the interpretation adopted by the learned lower Court is the correct one. The wajibularz of the village, therefore, does not stand against the alleged custom. The appellants' contentions to the contrary have no substance in them and are rejected.
16. The above means that it is the cumulative effect of the wajibularz and the deeds that turned the scale in favour of the plaintiffs. It is also significant that even the learned Civil Judge, who has gone into all the particulars in great detail, has nowhere said in his judgment that the deeds of transfer by themselves constituted sufficient evidence in favour of the custom set up by the plaintiffs. It, therefore, falls on us to consider whether that evidence is, when in conflict with the wajibularz, enough to establish the custom. Added to the wajibularz is the weight of the observations of Richards C.J. in Incha Ram v. Bande Ali Khan ('11) 33 All. 757. We, therefore, find that, on the one side there is the evidence of the wajibularz and, on the other the evidence furnished by the deeds but the effect of that evidence has to be considered in the light of the observations of Sir Henry Richards. If along with this, we bear in mind the principle of law laid down in Sri Girdhariji Maharaj v. Chhote Lal ('98) 20 All. 248 and affirmed in the Pull Bench case in Hafiz Mohd. Ahmad Saeed Khan v. Shiam Lal : AIR1944All177 that the prohibition against transfer has passed from the domain of a presumption into the domain of a rule of law, we feel no hesitation in holding that the evidence furnished by the wajibularz reinforced by such a rule of law, has not been outweighed by the evidence furnished by the deeds. We, therefore, allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit with costs in all Courts.