1. The respondents brought the suit, out of which this second appeal has arisen, for recovery of the site of a house sold along with the building standing thereon by the appellant No. 4 in favour of the other appellants.
2. It appears that the respondents were co-sharers in the village of Pandauli and on a partition, they obtained exclusive ownership over that portion of the Wage in which the house in suit was situated. The respondents were dissatisfied with the sale and contended that the site was their property and could not be disposed of by the appellant No. 4 who, they said, was a mere tenant. They asked for recovery of possession and alleged that they had no objection to the purchasers removing the materials of the house.
3. The vendor did not enter appearance. The vendees, however, contested the suit on the ground that there was a custom in the village by which the residents were entitled to sell their houses along with the sites.
4. The Court of first instance came to the conclusion that the custom contended for on behalf of the appellants existed and it accordingly dismissed the suit. The Court of First Appeal, viz., the learned Subordinate Judge, came to the conclusion that the evidence was insufficient for establishing the custom and he decreed the suit, allowing two months' time to the appellants to remove the materials.
5. The question raised being a mixed one of fact and law vide Ram Bilas v. Lal Bahadur (1908) 30 All. 311. I allowed the question of sufficiency or insufficiency of the evidence to be discussed.
6. It has been definitely held in this Court see Faiyaz Ali v. Rekhab Das A.I.R. 1921 All. 46 that a custom like the one set up is not an invalid custom. Indeed, the custom comes only to this: that the occupier of a house is also the proprietor of the site. It is really a question of title and, therefore, no question of the reasonableness or unreasonableness of the so-called custom arises see also the judgment of Aikman, J., in the Full Bench case of Ram Bilas v. Lal Bahadur (1908) 30 All. 311 referred to.
7. It has been held in this Court that ordinarily in a purely agricultural village, the zamindar is the owner of every bit of land in the village and whoever asserts that a mere resident in the village, not being a co-sharer, is entitled to sell the site of his house must prove his case by weighty evidence. In the case before me it appears that the village Pandauli is a very big one and is also a very ancient one. The wajib-ul-arz of the year 1867, a copy of which is on the record, shows that the tradition is that the village was founded 500 years ago. The learned pleader for the plaintiffs, in the Court of first instance, admitted that the village had a population of about 1,300 souls, out. of whom 300 to 400 persons were not agriculturists. The wajib-ul-arz also gives a list of the several professions held by the residents of the village. This list will show that many of the residents were not agriculturists.
8. It cannot then be contended that all the residents of the village who are not co-sharers, were there in the village for the purpose of cultivating the zamindar's lands and were, therefore, settled in the village for the benefit of the land-holders. There is a provision in para. 15 of the wajib-ul-arz and it throws some light on the question now before me. It lays down that subsequent to the drawing up of the wajibul-arz whoever would want to reside in the village must obtain permission from the landlords for the purpose. It is silent as to what are the rights of the villagers who had already been residing in the village from before the preparation of the waijb-ul-arz.
9. In this state of things we have to consider the evidence adduced on behalf of the appellants. They have produced no less than 19 sale-deeds, registered and unregistered, by which the residents of the village not being co sharers, have sold their houses, sites and materials to co-sharers and non-co-sharers and in virtue of which purchasers have occupied houses along with the sites. The learned Judge of the Court below has remarked that only in one case the site is specifically mentioned. But there would be clear difference between the language of sale-deed of a house in its entirety and that of the sale-deed of mere materials of a house, which the purchaser would remove, as soon as the sale is completed. I have heard most of the sale-deeds and I am clearly of opinion that they purported to transfer not only the materials but also the sites. The houses were described as 'owned and possessed' by the vendors and they were sold as the absolute property of the transferors. These sale-deeds range from 1872 to 1920. Only three of these sale deeds are less than 12 years old. Not a single instance has been cited in which these sales were ever questioned.
10. In addition to the sale deeds no less than seven witnesses have been examined to prove the so-called custom and three of these are co-sharers in the village. The co-sharers are Ahmad Ali, aged 65, Abdul Karim, aged 45 and Abdul, aged 45. The witness Ismail once owned a share in the village. All these witnesses have sworn that they themselves have purchased houses, owned and occupied by the ryots and that they have continued to be in possession of the properties purchased.
11. On behalf of the plaintiffs not a scrap of evidence has been adduced to explain such a heavy body of transactions and evidence adduced on behalf of the appellants.
12. Having regard to the history of the village, in my opinion, the evidence is overwhelming to establish the appellants' contention that the occupiers of the village sites are entitled to sell the houses as they stand, viz., the material and the site.
13. It has nowhere been alleged that the vendors' predecessor-in-title occupied the village after the wajib-ul-arz of 1867 had been framed. No special tenancy subsequent to the wajib-ul-arz has been proved. Indeed, para 2 of the plaint would indicate that the ancestor of the appellant No. 4 was an ancient resident of the village.
14. I accordingly allow the appeal, set aside the decree of the lower Court and restore the decree of the Court of first instance, dismissing the suit. The appellants will have their costs in this Court and in the Court below. The Counsel's fees in the Court will be calculated on the higher scale.