1. This is a Letters Patent appeal by a defendant against a decree of a learned single Judge of this Court. The plaintiff is the zamindar of the village and he sued for a decree that the defendant should remove the materials of a house within a specified time, and that the site of the house should be given to the plaintiff. The history of the house is as follows: Mt. Jasoda was a co-sharer in the village and she owned this house. There was an auction sale in 1885 by which her zamindari share was sold. She became an ex-proprietary tenant and was succeeded by Lala Earn, her adopted son, and in May 1929, Lala Ram sold this house to the appellant. The Court below has found that there is no custom by which a raiyat can transfer a house. It was further found that Mt. Jasoda occupied this house as a raiyat and her son Lala Ram also occupied it as a raiyat, and that the village in question Gopalpura was not an agricultural village, but it was a village which is one mile from the town of Agra, and this village Gopalpura is included within the Municipal limits of Agra. The majority of the inhabitants of the village are Chamars who are engaged in manufacturing shoes and who are not agriculturists. The case as argued before us in Letters Patent appeal involves certain considerations, These considerations are: what are the rights of a zamindar, a co-sharer, when there is an auction sale of his zamindari share? It was argued for the respondent zamindar that the co-sharer was reduced to the level of the other raiyats in the village and that the house owned by the co-sharer became non-transferable. This argument was founded on a ruling by a learned single Judge of this Court reported in Zahur Hasan v. Shaker Banoo 1925 All 29.
2. The problem appears to us to involve the following factors. When Mt. Jasoda was a co-sharer she had a proprietary title in three things: (1) a joint right in the site; (2) a proprietary right in the materials; and (3) aright of residence in this house on this site. By the auction sale we consider that only No. 1 was transferred, that is, she lost her undivided share in the village abadi. But we do not consider that she lost her proprietary rights in either (2) or (3). In our opinion the sale of her undivided share in the village and in the abadi could not lessen the proprietary title, which she had in the materials of the house and could not lessen per right of residence in that site. Before her residence she had a right of transfer of this house. This was a part from her owner ship of anundivided share in the abadi. By the auction sale she did not lose her right of transfer of the house but she retained this right of transfer; and the exercise of this right of transfer in may 1929 by her adopted son conveyed a full title in the materials of the house and in the right of residence in the house to the appellant. We consider that a distinction should be drawn between the position of person who have been zamindars, and who in their capacity as zamindars, own houses and the condition of persons who are mere raiyats. In the case of a mere raiyat the zamindar grants a licence to the raiyat to make a residence. Such a licence remains a licence and the raiyat has no 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. In regard to the ruling reported in Zahur Hasan v. Shaker Banoo 1925 All 29 we cannot accept the proposition, of law laid down at the end of the ruling,, as a proposition of general application,, and we consider that in regard to the houses of zamindars who lose their proprietary rights, the dictum which we have stated is correct. For these reasons we allow this Letters Patent appeal and we dismiss this suit of the plaintiff with, costs in all Courts.