1. This is another of those cases in which the defence which is so common nowadays is made that there is a customary right of transfer of the sites of houses in a village. We are of opinion that, as has often been said, the most cogent evidence is required before such a custom can be held to be established.
2. It is true that zamindars like everybody else must be watchful for in fringement of their rights, but that is a very different matter from saying that they must be perpetually harassing their tenants and watching them to sea every little thing they do. It may constantly happen that a particular tenant may exceed his rights even by the execution of a sale deed purporting to transfer the right to a site, but the transaction may take place in circumstances in which the zamindar is either ignorant of it, or even knowing of it does not think it worth his while to worry about it. We may give an illustration of this. An agricultural tenant may part with his house and purport to part with the site also to another agricultural tenant, and the zamindar, even if he knows of it, may not feel it worth worrying about much less worth instituting a suit about it.
3. On the other hand, an agricultural tenant may purport to transfer his house and site to a non-agricultural tenant even a total stranger in the village. This may be a very serious matter for' the zamindar, for if such a transfer is winked at by him and in course of time a custom is held to be established, he is manifestly in danger of losing the whole of his rights in a village site, and having to take up further sites from the agricultural area in order to provide room for his agricultural tenants. Now, in the present case, Bindayaohal is found to be an agricultural village. The transfer, by a perpetual lease, is by an agricultural tenant in favour of a non-agricultural tenant. The defendants seek to justify the lease of the site by the production, we are told, of 22 sale deads and eight mortgages, while the zamindar, on the other hand, has produced 14 kabuliyats and four instances relating to parjot.' Both Courts have held that no custom is established. The transactions relied upon by the defendants are spread over 100 years, while there are 600 houses in Bindhyachal.
4. The lower appellate Court has, even giving to the defendant full benefit of the transactions upon which he relies, held that they were not sufficient to establish the custom, and we agree. But we may add that even if we had any doubts, we should have to be satisfied that the transactions relied upon by the defendants were of the same nature as that which he endeavours now to maintain. We are told by counsel for the appellant that he has no information as to whether the transactions reliad on were transactions between two agricultural tenants, or whether the vendee or mortgagee as the case may be, was a non-agricultural tenant, or whether he was a stranger to the village. In the present case it is admitted that the lessee is a stranger to the village, that is to say, he is not already a tenant of any description, and it is more than possible that none of the transactions relied on by the defendant would apply to the present case; but for the reasons that we have given we do not think it necessary to enter into this further, or to send down any issue. We agree with the lower appellate Court, and the appeal is dismissed with costs.