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Mohammad Vilayat Ali Khan Vs. Mohamad Liyaqat Ali Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.580
AppellantMohammad Vilayat Ali Khan
RespondentMohamad Liyaqat Ali Khan and ors.
Excerpt:
custom - alienation--transfer of right of residence on the site by tenant--landlord and tenant--evidence of custom. - - practically the vendor has sold the property of the zemindar and we should require very good evidence indeed before we could hold as proved the existence of a custom under which a is entitled to sell the property of b......it as it stands, is totally insufficient to establish the custom set up. we, therefore, hold that the custom has not been proved. we have found, by our order of the 27th april 1909, that ghariboo was a tenant of the plaintiff and the pro forma defendants zemindars. as the custom alleged by the transferee has not been established, ghariboo was not entitled to transfer anything beyond the materials of the house. these materials his transferee is entitled to remove, but he has no right to continue in possession. we, therefore, allow the appeal and set aside the decrees of the courts below. the appellant will have a decree for possession jointly with his co-sharers pro forma defendants nos. 1 to 9, subject to the right of the defendant no. 11 to remove the materials of the house for.....
Judgment:

1. The finding of the lower Court on the issue referred is in favour of the respondents. It has held that Ghariboo as a tenant had a right by a custom prevailing in Jalalabad to transfer his right of residence on the site on which his shop stood. Objection has been taken to this finding that the evidence on the record is legally insufficient to establish the custom set up by the defendants. Excepting the bare proof of some sixteen transfers made by persons, who are not zemindars, there is no evidence to establish the custom set up. The defendants have contented themselves with simply proving the fact that these transfers were actually made. They have not attempted to show the circumstances under which they occurred, As the learned Chief Justice remarked in the Full Bench case of Ram Bilas v. Lal Bahadur 30 A. 311 : A.W.N. (1908) 112 : 5 A.L.J. 456 : 4 M.L.T. 169: We are not aware, however, of the circumstances of the case under which these sales took place. It may be that the landlord had, by express agreement with the tenants in the particular cases, transferred to them the sites of their dwellings. It may be that the sales were made with the consent of the zemindar. It may be that the sales were made under some special agreement with the tenants made at the time when the occupancy of the house began.' The present case is very similar in its aspects to the case quoted above. Practically the vendor has sold the property of the zemindar and we should require very good evidence indeed before we could hold as proved the existence of a custom under which A is entitled to sell the property of B. In our opinion the evidence produced by the respondents, accepting it as it stands, is totally insufficient to establish the custom set up. We, therefore, hold that the custom has not been proved. We have found, by our order of the 27th April 1909, that Ghariboo was a tenant of the plaintiff and the pro forma defendants zemindars. As the custom alleged by the transferee has not been established, Ghariboo was not entitled to transfer anything beyond the materials of the house. These materials his transferee is entitled to remove, but he has no right to continue in possession. We, therefore, allow the appeal and set aside the decrees of the Courts below. The appellant will have a decree for possession Jointly with his co-sharers pro forma defendants Nos. 1 to 9, subject to the right of the defendant No. 11 to remove the materials of the house for which purpose we allow him a period of three months from this date. The appellant will have his costs throughout against the answering defendants.


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