Rachhpal Singh, J.
1. This is a defendant's second appeal. The facts which have given rise to the litigation between the parties are set forth in our order of 2nd May 1933. We framed an issue:
Whether Narain Prasad had a right of transfer either under a lease or under any other valid agreement with the landholder
2. The case was sent back to the lower appellate Court with directions for a finding on this issue. The learned Judge has sent his finding which is that Narain Prasad had a right of transfer as a lessee of the plot on which the house stands. The learned Subordinate Judge has found that it is proved that the house was built over 50 years ago. This finding is binding in second appeal. Lachhmi Narain and Thekur Din ware the two sons of Narain Prasad. Lachhmi Narain sold his one-half share to Raj Narain under a sale deed dated 15th February 1928, while Thekur Din sold his share to the defendant-appellant on 11th July 1929. The plaintiff, Bishnath Prasad, instituted a suit for partition of the one-half share which Ram Narain had purchased on the allegation that he got that share of Raj Narain under a will. Both the Courts below have held that the plaintiff had a right, as legal representative of Raj Narain, to maintain a suit for partition.
3. The only other question in dispute is as to whether or not Narain Prasad had a right to transfer the house in suit. The contention raised by the appellant who, in addition to being a purchaser of the other one-half share, happens to be the legal representative of the lessor of Narain Prasad, is that Narain Prasad was a mere licensee and therefore under the provisions of Section 56, Basements Act, was incompetent to make a transfer. The first question for consideration is whether the ease is governed by the provisions of the. Easements Act, which came into force on 1st July 1882. The Act is not retrospective in its effect and its provisions were extended to United Provinces of Agra and Oudh by Act, 8 of 1891. Neither the Easements Act, 8 of 1882, nor the amending Act, 8 of 1891 can affect the rights which were acquired before 1891. In the case before us there is a clear finding of the learned. lower appellate Court that, the lease of Narain Prasad carne into existence about 70 years ago, that is to say, long before the passing of the aforesaid two Acts. So in our opinion these two Acts do not apply to the case before us where the lease was given to Narain Prasad long before the passing of the aforesaid Acts. But we will assume for the purpose of deciding this case that the case is governed by the provisions of the Easements Act. What is the position then? Section 56, Easements Act enacts:
Unless a different intention is expressed or necessarily implied, a license to attend a place of public entertainment may be transferred by the licensee; but save as aforesaid a license cannot be transferred by the licensee, or exercised by his servants or agents.
4. The words unless a different intention is expressed or necessarily implied' are very important. The terms of the license must be placed before the Court by the licensor and then only it will be in a position to determine as to whether or not having regard to them the licensee had a right of transfer. In the case before us the appellant, the representative of the lessor or licensor, has not told us what the terms of the grant were. We are asked to assume that, as the lease given to Narain Prasad was for building a house, he had only a right of residence and no more. We are of opinion that no such assumption can be made by us in view of the words 'unless a different intention is expressed or necessarily implied' mentioned in Section 56, Easements Act. There may be cases in which the license is not a license pure and simple, but is coupled with a grant of interest or right which is assignable. In the case of raiyat occupying houses in cities and towns it is to be presumed that they have a right of transfer unlike those who inhabit agricultural areas and so, if a licensee sues to eject a transferee of such a raiyat, he must also prove the existence or terms of the grant under which the house in suit was built which make the transfer thereof invalid and entitle him to recover possession of the site. Before the case was sent back for a finding on the issue framed by us the defendant-appellant had made a statement in the Court below, saying that on the sale of a house, he, as ground landlord, was entitled to five per cent of the price. The learned Subordinate Judge was therefore justified in drawing an inference from this statement that the tenants building houses on the land leased by the landlord for building purposes had the power to transfer, otherwise there would be no question of getting zar chaharum at the time of the sale. Bo far back as 1911 a Bench of this Court held in a ruling, Jamna Kuer v. Abdul Nabi (1910) 16 I.C. 353, that in the case of a town there is no presumption that the occupiers of houses have no power to transfer the right to occupy the sites on which their houses stand. It was also decided that the payment of a small rent to the ground landlord is not necessarily inconsistent with the right to transfer the houses together with the right to occupy sites. Another case on the subject is reported in : AIR1929All494 . It was held by a learned Judge of this Court that in cases of raiyat occupying houses in cities and towns, it is to be presumed that they have a right of transfer, unlike those who inhabit agricultural areas, and so if a licensor sues to eject the transferee of a raiyat, he is to prove not only his ownership, but must also prove existence of custom or terms of the grant under which the house in dispute was built which make the transfer thereof invalid entitling him to recover possession of the site. The learned Counsel for the appellant is not right in arguing that the Court deciding this case did not take into consideration Section 56, Easements Act. A perusal of this ruling shows that Section 56, Easements Act, was considered by the Court. We are of opinion that in cases of houses built in cities on the land belonging to landlords there can be no presumption that they have no power of transfer. If the landlord contends that the tenant had no right to transfer the building which he had built and which he was occupying, it is for him to show that under the terms of the license the right of the tenant was limited and it was expressly agreed that he would be incompetent to make a transfer or it was open to him to prove the existence of a custom prohibiting the right of transfer. So far as houses built by tenants in villages are concerned, the rights between the parties are different. A tenant building a house in a village site has only a right to occupy so long as the tenancy lasts or so long as he does not abandon the village. But the same principle cannot apply to houses built in a city. As we have remarked, in the case before us, the defendant-appellant who now represents the landlord has not shown what the terms of the license were, nor has he been able to show that there was any custom under which the tenant or the representative of the tenant who had built the house was incompetent to make a transfer of it.
5. The learned Counsel for the appellant has relied on a ruling reported in A.I.R. 1924 All. 825. In our opinion this ruling is not applicable to the case. The question decided in that case was that the mere fact that the license had become irrevocable did not necessarily imply that the licensee acquired a right to transfer the right of the building. The point before us is different. Here we have a case of a house which was built about 70 years ago. The representative of the tenant building the house has made a transfer of it, and what we have to see is whether under the terms of the lease or license he was incompetent to make a transfer. This point has not been established. For the reasons given above, we are of opinion that the appeal should be dismissed. We accordingly dismiss the appeal with costs.