1. This is a defendant's second appeal arising out of a suit for ejectment. The plaintiff-respondents are zamindars of village Lachhmipur, in which the defendant-appellant purchased a house belonging to a 'riaya' and started making constructions without the permission of the zamindars. The latter instituted a suit challenging the transfer in favour of the defendant vendee and seeking to eject him. The defendants pleaded that there was a local custom in the village which entitled the occupier of the house to sell not only the superstructure but also the right of occupation. In proof of this allegation they produced a number of sale deeds. Some witnesses were also examined on both sides. The Court of first instance held that the defendants had failed to establish the custom not up by them. Accordingly the suit was decreed. The defendants appealed in the Court of the Civil Judge of Shahjahanpur but without success. It is contended in second appeal that village Lachhmipur was included in a town area to which U.P. Act 2 of 1914 is applicable and that, though the village has since been excluded from the town area, it cannot be considered to be an agricultural village. The contention is that in all urban areas the occupiers of houses have the right to transfer their residential houses so as to entitle the transferee to occupy the site by retaining the same building or erecting a new one. Section 2(8) of the D.P. Act 2 of 1914 defines a 'town area' as meaning 'any local area which the local Government has declared or defined under Section 3 to be town area'. Section 3 empowers the Local Government to 'declare any town, village, suburb, bazar or inhabited place to be a town area for the purposes of this Act'. There is a proviso appended to the section which provides that 'an agricultural village shall not be declared, or included within the limits of a town area'. Sub-section (2) of the same section provides that:
The decision of the local Government that any inhabited area is not an agricultural village within the meaning of the proviso to Sub-section (1) of this section shall be final and conclusive....
2. The Act provides for the appointment of a Town Magistrate, constitution of a town panchayat, taxation, town fund, sanitation and so on. Any area included in a town area, declared by the local Government to be such, must be presumed to be no part of an agricultural village, and the decision of the local Government may be final and conclusive; but this is only for the purposes of the Act. Where the question is, as in the present case, whether a custom entitling the occupier of a house to transfer his right of residence exists and the locality in which the house in question is situate is an agricultural village, Section 3(2), Town Areas Act, is not, in my opinion, oonolusive on the point. There is nothing in Behari Lal v. Sukhbir Singh : AIR1936All442 which may justify the view that the decision of the local Government is conclusive and irrebuttable for all purposes. In a contested case, the decision of the local Government may have some evidential value on the point; but I do not think that the declaration by the local Government is conclusive for the purposes other than those of the Town Areas Act. In the present case, at the time when the suit was instituted, village Lachhmipur was not part of a town area. As already, stated, it had been excluded. The local Government is not empowered to include within the limits of a town an agricultural village. Lachhmipur was included in a town area, but it was probably discovered that it was an agricultural village, and was then excluded from the town area. I do not think that the fact that it was included in a town area for some time long before the institution of the suit will lead to the inference that it is not an agricultural village.
3. The defendant himself undertook to prove the custom as if Lachhmipur was an agricultural village. The evidence produced by him has been adequately dealt with by the lower Courts, whose finding is one of fact and does not seem to be vitiated by any error of law; at least none has been pointed out before me. This being so, there is no force in this appeal, which is dismissed with costs. Leave to appeal under the Letters Patent is refused.