1. This is the defendant's appeal against the decree of Mr. Hasan Irshad, Civil Judge, Bahraich, dated 31st August 1943.
2. The plaintiff, the sole zamindar of village Jamnaha Bhawanipur, filed a suit for recovery of possession of a site of a house in its hamlet Bhawanipur. He alleged that the defendant respondent Ramji Lal used to live in a house in the abadi of the hamlet Bhawanipur and when this house fell into ruins he sold it to the defendant Ram Kishan, the present appellant, for Rs. 50, contrary to the custom, without his permission and that the defendant appellant Ram Kishan had made certain constructions and those should be demolished and possession of site be given to him. In defence it was pleaded that Bhawanipur was an integral part of village Jamnaha Bhawanipur, that this village had ceased to be an agricultural village on account of a big market there and so the law applicable to agricultural villages was not applicable, that the owner of the house in that village had the right of transfer, that in any case the plaintiff could not recover possession because the sale had taken place with the knowledge and permission of the plaintiff himself and the plaintiff had realized zar-e-chaharum from him and while the building was in course of construction the plaintiff himself had encouraged him to make the constructions and by his conduct he was therefore estopped from asserting his title to the site.
3. The learned trial Court came to the conclusion that although Jamnaha Bhawanipur was not a town yet it was not a purely agricultural village on account of the existence of a fairly big bazar in Jamnaha, that the plaintiff has failed to show a custom of non-transferability of houses in the village and that the plaintiff was also estopped from asserting his right to the site, and the suit was accordingly dismissed.
4. The learned lower appellate Court came to the conclusion that from the point of view of the revenue records Bhawanipur and Jamnaha-were one entity but Bhawanipur had a separate physical existence and so 'for the purpose of the applicability of the general law of the Provinces, or otherwise it cannot and should not be considered to be an integral part of Jamnaha proper', that, even assuming that both Jamnaha and Bhawanipur constituted one village, the mere fact that there was a bazar in village Jamnaha did not have the effect of converting Jamnaha Bhawanipur into a non-agricultural village or a town, that the ordinary law of the land was applicable, that the custom regarding the non-transferability of sites in the abadi had been established and that the plaintiff was not estopped from asserting his claim to the site, and in. the result the plaintiff's suit was decreed. Being, dissatisfied the defendant Ram Kishan has come, up in appeal.
5. It has been contended on behalf of the appellant that Jamnaha Bhawanipur is not an agricultural village on account of the existence, of the bazar in village Jamnaha and that the lower appellate Court has wrongly ignored the effect of a judgment, Ex. A-4, bearing on the point. Now, it appears that Ex. A-4 was a judgment delivered in a suit filed by the present zamindar against certain shop-keepers in Jamnaha bazar and in that case the question of the custom of non-transferability of the sites had been raised and the custom was negatived. It was also a finding of fact in that case that on the evidence produced before the Court it had been proved that Jamnaha Bhawanipur was not an agricultural village on account of the bazar that existed there. The learned lower appellate Court refused to rely upon this finding as to the character of Jamnaha Bhawanipur, and in my opinion this was done rightly. The finding depended upon facts which were proved in that case and the finding cannot bind the plaintiff] because the judgment was not between the par-ties to the present litigation but between the plaintiff and some other persons. The learned lower appellate Court rightly relied on Kumar Gopika Raman Roy v. Atal Singh and Ors/ A.I.R. (16) 1929 P.C. 99. On this point. The lower appellate Court has found that formerly there were three separate villages : Jamnaha Bhawanipur Asli, Bhawanipur and Kundaulia Dakhli, but at the time of the First Regular Settlement the three villages were surveyed together and one common khasra and one common map and wajibularz were prepared and the combined villages were constituted into one village by the name of Jamnaha Bhawanipur. It has been found as a fact that the abadis of Jamnaha and Bhawanipur are separate and distinct and at some distance from each other. It has also been found that there is a regular bazar in village Jamnaha where ordinary necessities of life only are sold. This bazar area has not been separately surveyed and measured or separated from the rest of the village. It is not known what the total population is or what the pupulation is of the traders' class doing their business in the bazar. It would appear, therefore, that the traders' class in the bazar are merely tending to the necessities of the village people and are therefore a part of the village economy. In Mt. Sadhant v. Barkhande Mahesh Pratap Narain Singh, Raja and Anr. A.I.R. (29) 1912 Oudh 401, it was held that
where a portion of an agricultural village developed into a bazar or town, but one map, one khasra and one wajibularz was prepared for the whole village at settlement and the portion was' not measured separately as a distinct entity apart from the village itself, the bazar was an integral part of the village and was governed by the customs applicable to the whole village.
I have no doubt that the view taken by the learned lower appellate Court that Jamnaha Bhawanipur has not ceased to be an agricultural Village by the mere presence of the bazar is correct.
6. It has also been contended that the law applying to the agricultural village, especially in respect of the village abadi, is not applicable to the case because the house which has been sold belonged to Nand Kumar, the father of defendant 2, who was merely a patwari and that he could not be considered to be an agriculturist. The finding of the learned lower Court is not only that Nand Kumar was a patwari, but its finding also is that the house in suit must have been built not only by Nand Kumar but by his father Sahib Lal who held a tenancy in the village. There was documentary evidence on the record to show that Sahib Lal and his brother had tenancy holding in village Bhawanipur in 1303 and 1304 Fasli and Nand Kumar was appointed patwari in 1891 and he was shown as resident in Bhawanipur in 1905. There was every presumption under the Hindu law that Sahib Lal and his sons and Sahib Lal's brothers constituted a joint Hindu family, and so the finding of the learned Judge was based on. evidence and not on conjectures as the learned Counsel for the appellant says. The finding of fact is binding on this Court in a second appeal and that finding clearly is that Nand Kumar's house was really a house of an agriculturist. In these circumstances, the point sought to be raised by the appellant does not really arise.
7. It was contended that it is for the plain, tiff to show that there is a custom of non-transferability of abadi sites in village Jamnaha Bhawanipur and that it must be shown that the custom is continuous. The law applicable to the village abadi is well-known and based upon ancient custom. In Muhammad Ahmad Said Khan v. Shiam Lal and Ors. : AIR1944All177 ., the law on the subject was considered by a Full Bench and the head-note reads as follows:
According to the general and well-known custom of these provinces, and in the absence of special contract or grant to the contrary, an agriculturist, or an agricultural tenant, or any other person necessary for the village economy, who is allowed by the zemindar to build a house for his occupation in the abadi obtains a bare right to use that house for himself and his family so long as he maintains the house, and so long as he does not abandon the house by leaving the village. He is a bare licensee of the site and has no right to alter its user.
The custom is so well established that it may be treated as the common law of the province. Every villager knows perfectly well the nature of his rights in the abadi. The principle of law established by the aforesaid custom is implicitly followed even though conditions might have changed so much that what was once an agricultural village may have become part of a town and be included within municipal limits.
In Pandit Sheodat Prasad and Ors. v. Lala Suraj Bali and Ors. A.I.R. (2) 1915 Oudh 220, the head-note says:
Under the ordinary law prevailing in Oudh the sites in the inhabited area of a village are the property of the zamindar, and a tenant has no right in those sites in absence of evidence.
It is not disputed by the appellant that the law has been correctly indicated above. What he contends is that there are instances from the year 1896 onwards which show that this custom of the non-transferability of the site has not been invariably followed and for this reason the custom is not a valid custom and does not confer the rights claimed by the plaintiff. The appellant produced in the trial Court four sale-deeds showing that houses and shops in Jamnaha bazar alias Hiraganj bazar were sold by the occupiers to others. Exhibit A-8, dated 26th May 1896, is a sale by one Durga to one Mahesh Lal. Exhibit A-7, dated 30th December 1914, is a sale by one Ram Autar to one Tulsi. Exhibit A-5, dated 4th September 1916, is a sale by Sukhraj Singh to one Raja Ram, Exhibit A-6 is the fourth sale, dated 28th June 1926, by one Tulshi to Bachehu Lal covered by judgment, Ex. A-4. It will be seen that in the period of thirty years from. 1896 to 1926 there were only four instances. The number of these instances is really insignificant The circumstances in which these transactions were made have not been proved. The appellant satisfied himself with putting in copies of deeds of transfer-a method of proof which cannot ordinarily shed much light upon the actual facts as the contents of such deeds seldom 1 disclose the actual history of the transfers. 'Taking these documents at their highest value tali that does appear is that apparently the zamindar took no exception to the transfers. However, the mere fact that such transfers were made without objection by the zamindar does not justify the inference that the riaya set up a title to proprietary possession, or that any cause of action arose owing to such transfers upon whish it was incumbent on the zamindar to sue to have the transfer set aside under the penalty of losing his proprietary title. The fact that the licensees transferred without objection by the zamindar their title as licensees would give them no title to the sites. The appellants also relied upon the instance (Ex, A-6) dealt with by the judgment, Ex. A.4. It would appear that in this case the present plaintiff respondent sued to receiver possession of certain houses in Jamnaha bazar. It was alleged that at least two houses had been transferred by shop-keepers of the bazar, Tulshi and Chhedi, to the defendants in The custom of non-transferability of the site was pleaded. The learned appellate Court, District Judge, Gonda, in dealing with the question observed as follows:
The next question for consideration is whether by season of their houses being situate in the Bazar, Tulsi and Chhedi had a transferable right in the same. A number of rulings have been cited before me on either aide. After going through them I find that the Saw as laid down therein is that in agricultural villages in the United Provinces of Agra and Oudh in the absence of a special contract to the contrary an agriculturist who is allowed by the landlord to build a house in the village abadi has no saleable interest in the house and the landlord may resume it if the occupier of the house ceases to be an agriculturist or transfers the same to another person. I have not been referred to any evidence showing that it was as agriculturists that Tulshi and Chhedi had built their houses In the bazar. Therefore, in my opinion, the general rule of law stated above will not apply to their houses. I am also of the opinion that the rule applicable to houses situate in the abadi of a purely agricultural village will not apply to houses situate in Jamnaha bazar which, as already stated, appear to be more of a town than of a village. I, therefore, hold that the plaintiff cannot get possession over the houses of Tulshi and Chhedi.
It will be noticed that the two houses in dispute in that case were situated in bazar proper and also the transferors were not proved to be agriculturists, and on these grounds the custom of non-transferability was held not to apply. Here in the present case it has been pointed out that the transferor was an agriculturist and it has also been pointed out that the house transferred was not situated in the bazar but was situated in the hamlet Bhawanipur. The instance, therefore, cited by the appellant is of no real help. Further the view expressed by the learned District Judge in Ex. A4 is contrary to the law as stated in Mt. Sadhant v. Barkhande Mahesh Pratap Narain Singh, Raja and Anr. A.I.R. (29) 1942 Oudh 401, where it was held that
where a portion of an agricultural village developed into a bazar or town, but one map, one Khasra and one wajibularz was prepared for the whole village at settlement and the portion was not measured separately as a distinct entity apart from the village itself, the bazar was an integral part of the village and was governed by the customs applicable to the whole village.
Thus in the case covered by the judgment, Ex. A4, the learned Judge ought to have applied the law of the agricultural village and held the custom of non-transferability to be applicable. Prom- the instances relied upon by the learned Counsel for the appellant it cannot be held that the continuity of the custom has not been proved.
8. Another point urged by the learned Counsel for the appellant was that the lower appellate Court has erred in holding that the suit is not barred by estoppel and acquiescence. Now, it would appear that it was alleged on behalf of the defendant vendee, that is, the appellant, that he had purchased the house with the consent and knowledge of the plaintiff and in fact he had paid zar-e-chaharum to the plaintiff and that on two occasions subsequently, while the house was in the course of construction, the plaintiff had encouraged him to build telling him to make a decent construction. The learned lower appellate Court has disbelieved these allegations of fact, and the lower Court has also said that even if it be assumed that the plaintiff had actually asked the appellant to make a decent construction, such a conduct on his part would not estop him now from claiming rights in the site of the land. Section 115, Evidence Act, lays down that
when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
It was for the appellant to show that the plain-tiff intentionally caused or permitted him to believe that the appellant had a right to build upon the site. The lower appellate Court has not believed the story of the consent of the zamindar to the sale nor the story of receipt of zar-e-chaharum by the plaintiff. Even if it had been believed that the plaintiff asked the appellant to make the construction-and in a decent manner. -that would not show by itself that the plaintiff was aware that he had his own rights in the site and notwithstanding them he allowed the appellant to make the construction. It has been found by the lower Court that as a matter of fact the appellant was making constructions upon a land which adjoins his own residential house. It was not shown by the appellant that the plaintiff knew that the constructions were being made on the plaintiff's land. It cannot under the circumstances be said that even if the plaintiff asked the appellant to make the constructions the plaintiff was aware that he was asking him to make the constructions 011 his own, that is plaintiff's, land and so Section 115, Evidence Act does not help the appellant at all. The plea of estoppel raised by the appellant appears to be inconsistent with his pleadings for therein he had clearly said that every owner of the house in the village had a right to transfer his property without the permission of the zamindar. In Mustafa Husain, Syed v. Mt. Saidul Nisan A.I.R. (14) 1927 Oudh 66, it was held that:
The plea of acquiescence cannot, therefore, be held as established on the ground that the plaintiff raised no objection when a building was constructed on his land and that there was long delay in enforcing his rights, if any, in respect of the land in question.
Similar view was expressed in Dan Bahadur Singh and Anr. v. Talewant Singh and Ors. . In the present case also it was alleged that the plaintiff zamindar had made no objection to the constructions and So the rulings cited above would be applicable and they make the plea of estoppel raised by the appellant unsustainable. The decision of the lower appellate Court was obviously correct.
9. The last point urged in the appeal was that possession over the site be not given with-out ordering the plaintiff to pay compensation to the appellant in respect of the constructions. It has to be noted that the plaintiff did not ask for possession of the house but he only asked for possession of the site and so the question of compensating the appellant for the materials of the house does not arise. The lower appellate Court has directed the appellant by its order of 31st August 1913, to remove the material within two months of the date of that order. The appellant is clearly entitled to no relief on this point.
10. The result is that the appeal fails and is hereby dismissed with costs.