Iqbal Ahmad, J.
1. The question that arises for consideration in the present appeal is whether or not the occupants of houses in Mahal Sarda Nand of village Chachakpur, which is within the limits of the Municipality of Jaunpur, have a right to transfer, not only the materials of their houses, but also the site of their houses as well. The question has been answered in the affirmative by both the Courts below.
2. The suit giving rise to the present appeal was brought by the plaintiffs-appellants for possession of the site of a house that once admittedly belonged to one Hanuman, predecessor-in-title of Defendants Nos. 3 and 4, by Demolition of certain constructions made by defendants Nos. 1 and 2, in whose favour Defendants Nos. 3 and 4 had executed a sale deed with respect not only to the materials of Hanuman's house, but also the site of his house. The plaintiffs' case was that the house of Hanuman had fallen about 12 years prior to the institution of the suit, and its site had reverted to the plaintiffs who were zemindars, and as such Defendants Nos. 3 and 4 had no right to transfer that site to Defendants Nos. 1 and 2. The plaintiffs further asserted that even if Hanuman's house existed, his heirs had only a transferable interest in the materials of the house and were not entitled to transfer the site.
3. The defence to the suit was that Chachakpur being within the municipal limits of Jaunpur, the owners of houses in that village are the absolute owners not only of the materials, but of the site of their houses as well, and have a right to transfer their houses along with the right of residence.
4. It has been found by both the Courts below that the house was not abandoned by Hanuman, but was almost in ruins when it was sold to Defendants Nos. 1 and 2, and that Chachakpur is an agricultural village and
its abadi or population is constituted by agriculturists or persons who carry on husbandry or allied calling and whose forefathers were agriculturists.
5. But the Courts below have further held that the general law of the land that the zemindars of an agricultural village are, as a rule, and presumably, the owners of all the house-sites in the village and the occupants of houses in the abadi have no interest in the site which can be sold by private sale or in execution of a decree against them, does not apply to house-sites in towns, and that the presumption of law is that the owners of houses in towns, oven though they be agriculturists and even if the houses are in an agricultural village forming part of town, have a transferable right in the sites of their houses. The Courts below have also come to the conclusion that the documentary evidence produced by defendants supported their contention that the occupiers of houses in Jaunpur had a right to sell the sites of their houses.
6. I am unable to agree with the Courts below. It is well settled that a tenant in an agricultural village has not, in the absence of a custom or a contract giving him such a right, any right to transfer the site of his house in the abadi, and his only right is to use the house for himself and his family so long as he maintains the house and so long as he does not abandon the same by leaving the village, and the burden of proving the custom entitling a ryot to sell the site of his house lies on the person asserting such a custom and that such custom can only be proved by clear and cogent evidence: vide Sri Girdhariji Maharaj v. Chote Lal  20 All. 248, Bhajan Lal v. Muhammad Abdul Samad Khan  27 All. 556 and Muhammad Usman v. Babu  8 A.L.J. 61.
7. It remains to consider, whether the mere fact of inclusion of an agricultural village within a Municipality has the effect of destroying the ordinary right of the zemindars in the sites of the houses in the abadi and of vesting in the occupants of houses the rights to transfer not only the materials of their houses but the right of residence as well. Apart, altogether, from authority, I can discover no justification for holding that the rights of the zemindar, who is presumably the owner of every inch of the ground in an agricultural village including the sites of the houses in the abadi, should be adversely affected by the inclusion of a portion or the whole of such village within the ambit of a Municipality so long as the village retains its character of an agricultural village The presumption thai the zemindar is the owner of house sites in the abadi and that occupiers of houses have not a transferable interest in the sites, must hold good, unless a custom or contract to the contrary is proved. Notwithstanding the inclusion of an agricultural village in a Municipality the zemindar remains liable for the payment of the entire Government revenue assessed on the village, and it cannot be doubted that he remains, as before, the owner of all the agricultural and waste land in the village. If that is so, I fail to understand why should the fact of the village being included within the limits of a Municipality result in the curtailment or extinction of the rights of the zemindar only in house-sites and of an automatic enlargement of the rights of occupants in the same. There are certain well recognized modes by which a right vested in a person, can pass from him to another person, for instance, by transfer, inheritance or by adverse possession for more than twelve years. But surely the mere application of the Municipalities Act to an agricultural village cannot have the startling effect of destroying the ordinary proprietary rights of the zemindary in house-sites in such a village.
8. The view that I take is in consonance with the observations of Walsh, J., in the case of Gobardhan v. Manna Lal  40 All. 584 and with the view taken in the case of Rafulla Khan v. Mumtaz Begam : AIR1927All609 . The cases on which reliance has been placed by the Courts below are distinguishable. In the case of Bahadder v. Kair-ud-din Hussain  29 All. 133 the site in dispute was in mohalla Daraganj within the Municipal limits of the city of Allahabad. It was found in that case that the house existing on the site in dispute in that case was built many years ago, and neither the owner of the house nor his predecessor-in-title ever acknowledged the title of the zamindar or carried on any trade
for the carrying on of which sites in the abadi of a village are usually granted by the zemindar free of rent.
9. It was held on these facts that the occupier of the house must be deemed to have acquired a title to the site by adverse possession. This case was distinguished in the case of Shambhu Nath v. Hari Ram  40 I.C. 97 and it was observed in that case that
Mohalla Daraganj cannot by any pretence be said to be a purely agricultural mohalla; it is a portion of the city of Allahabad, inhabited mainly by Pragwals, and it is doubtful whether a single tenant of an agricultural type resides within the four corners of the mohalla.
10. It is to be remembered that in the present case, according to the findings of the Courts below, Chachakpur is still an agricultural village and its inhabitants are agriculturists. In the case of Abdul Haq v. Datti Lal  37 All. 144 the site in dispute was situated in Mohalla Atala in the City of Allahabad. That mohalla was once a portion of an agricultural village called Attarsuiya. The estates of some of the co-sharers of that village were confiscated by the Government shortly after the Mutiny of 1857, and subsequent to the confiscation a certain area of the village, now represented by Mohalla Atala, was given up by the proprietary body for the formation of an abadi for butchers. From that moment onwards Mohalla Atala ceased to be an agricultural village, and it was held by this Court that the whole transaction by which that abadi came to be created 'amounted on the face of it to the letting of a soil on building leases at a uniform ground rent,' and as such the owners of houses in that mohalla had the rights of a lessee in the site and the rights of a lessee, in the absence of a contract to the contrary, being transferable, they had a transferable interest in the sites of their houses.
11. It is to be noted that the learned Judges who decided Abdul Haq's case  37 All. 144 pointed out, in the course of their judgment, that the general law of the land applicable to sites of houses in purely agricultural villages did not apply to Mohalla Atala, not because Mohalla Atala was within the Municipal limits of Allahabad, but because that mohalla was not an agricultural village and the residents of the mohalla were in the position of lessees and not of licensees. In the cases of Banwari Lal v. Rama  9 I.C. 427 and Sahu Govind Prasad v. Kundan A.I.R. 1924 All. 112 the sites in dispute were sites of houses situated in towns and not in agricultural villages, and as such it was held that the presumption which obtains in agricultural villages that the tenants have not the right to transfer the sites of their houses has no application to houses in towns. I have not been able to lay my hands on any case, and none has been cited on behalf of the respondents, in which it has been held by any Court, that though a village retains its character of an agricultural village, the moment it is included within the limits of a Municipality, the zemindar loses his proprietary rights in the house sites in the abadi.
12. The conclusion at which I have arrived is that occupants of houses in agricultural villages do not, in the absence of a custom or contract to the contrary by the mere fact of that village being included in a Municipality, acquire a right to transfer the site of their houses or to transfer the right of residence along with the materials of their houses, and the presumption that the owners of houses in towns have a transferable interest in the site of their houses has no application to agriculturists residing in an agricultural village, though that village may be within the limits of a Municipality.
13. The Courts below have referred to three unregistered sale-deeds, two of 1886 and one of 1901, and to six registered sale-deeds by which not only the materials of the houses but also the sites of those houses were transferred by tenants in village Chachakpur. If the Courts below meant to hold that these nine instances of transfers were enough to establish the existence of a custom entitling the occupants of houses, I am unable to agree with them. This Court
in second appeal has jurisdiction to consider the evidence given in support of the alleged custom and to determine whether or not that evidence is sufficient in point of law to establish the custom set up: vide Giriraj Singh v. Hargobind Sahai  32 All. 125.
14. Four out of the six registered sale-deeds were executed within 12 years prior to the institution of the suit and could be successfully assailed by the plaintiff-zemindars, and as such those deeds have to be eliminated from consideration in the present case. There remain two registered sale-deeds and three unregistered sale-deeds. Five transfers are certainly insufficient to prove a custom of the kind set up by the defendants-respondents. It may be that some of the transferees under those deeds were persons not distasteful to the zemindars and accordingly the zemindars did not challenge their right to occupy the houses as their ryots. In any case, the mere fact of the zemindar, in some cases, foregoing his right of challenging the alienation of sites by occupants of houses, does not debar him from asserting that right in other cases, provided his inaction has not been long enough, and the numbers of transfers have not been so large, as to be enough in law to lead to the conclusion that a custom had grown up in the village entitling the tenants to transfer the sites of their houses.
15. For the reasons given above I allow the appeal, set aside the decrees of the Courts below and decree the plaintiffs' suit with costs in all Courts. Defendants Nos. 1 and 2 will be entitled to remove the materials of their houses within three months from the date of my decision becoming final. On their failure to do so the plaintiffs will be entitled to execute the decree for possession by removal of the materials through the intervention of the Court.