Henry Richards, C.J.
1. This appeal arises out of a suit in which the plaintiff sought to eject the defendant from the possession of a certain house. The house in question is a small house, one of a large number of similar houses in one compound in Aligarh. It appeared to be admitted that the plaintiff is the zemindar of the mohalla in which the compound is situate. The learned Judge says that, in a general way, he has established his title to the compound and to the houses in that compound, though not to the particular house which is the subject-matter of the present suit. This particular house was at one time occupied by a man called Pita. He was succeeded by his son, and after the death of Pita and his son, the widow of Pita sold it to the defendant Muhammad Yusuf. It seems to me that the zemindar is presumably the owner of the houses and the sites of the houses within the zemindari. Of course, it is open to the occupiers to show that a custom exists giving them rights more or less extensive in respect of their houses and the sites. It is, of course, also open to the occupier of a house to show that he has been in adverse possession. Non-payment of rent alone would, I think, be generally quite insufficient to establish that the occupier of a site of a house had acquired proprietary possession against his zemindar. It must be borne in mind that the effect of the decision of the Court below in the' present case is to make the defendants the proprietors of this particular site, in other words, to cut this particular plot out of the plaintiff's zemindari. In a case like the present, the fact that Pita never paid rent to the plaintiff or his predecessors-in-title is a matter which very likely is of very little weight. It may well have been that the zemindar gave some one individual either a tenancy of the compound or allowed him to take possession, and that the occupiers of the sites came in under the licensee of the predecessor-in-title of the plaintiff. If such were the case, unless the plaintiff's licensee acquired a title against the plaintiff, the persons who come in under that licensee could never acquire title by adverse possession against the plaintiff. In the case of Incha Ram v. Bande Ali Khan 8 A.L.J. 877 : 33 A. 757 : 11 Ind. Cas. 52 I stated at some length my views on this question of adverse possession by an occupier against the zemindar. In the present case, if I thought that the learned District Judge had found, as a matter of fact, upon evidence that Pita had been in adverse possession, I would, of course, be bound by that finding in second appeal. Reading the judgment as a whole, it seems to me that he arrived at that conclusion solely on the ground that the plaintiff had failed to show payment of rent by Pita to him or to his predecessors-in-title. Non-payment of rent might of course be some evidence of adverse possession. The value to be attached to such a piece of evidence would vary in different cases. But non-payment of rent alone certainly does not necessarily prove adverse possession. The learned Judge says that the plaintiff's title had been denied by others who live in the same compound but he also says that the other persons were for the most part defeated by the plaintiff and that the plaintiff has, in a general way, established his title to the compound and the houses therein. Before deciding the case, I think it right to refer the following issues to the Court below:
(1) Was Pita or his predecessors-in-title in adverse possession of the plot in dispute for more than twelve years prior to the institution of the suit? In deciding this issue, the Court will have regard to the remarks which I have made above.
(2) Was there any custom existing in the mohalla by virtue of which the tenants or occupiers of the houses were entitled to sell or transfer the sites of their houses? The onus of establishing such a custom will lie upon the defendant.
2. The Court will take such additional evidence as the parties may wish to adduce. On return of the findings, ten days will be allowed for filing objections.