1. This appeal arises under the following circumstances: The appellants who were the plaintiffs in the Court of first instance sued to recover the site of a certain house on the following allegations The house belonged to fixed-rate-tenant, viz., Sitla Bakhsh, that he having died, his wife inherited the tenancy, and that she on 25th April 1917 sold her occupancy rights to the respondent as also her residential house. The plaintiffs, who are the landlords of the village, urge that there is no custom in the village justifying the transfer of the site of the house and asked the defendant to remove the materials and to vacate the site. The suit was dismissed by both the Courts below. The appellate Court was of opinion that there was no custom by which a transfer of the site could be effected but it was also of opinion that the house was purchased because the purchaser of the tenancy had no suitable place to live in for the purpose of cultivating the land. Indeed the learned Subordinate Judge found that the house in dispute was required for the cultivation of the 9 acres of fixed-rate-tenancy land and was actually used for keeping cattle etc., Following a ruling, viz., Thakurji Maharaj v. Anant Bharthi AIR 1922 All 538, the learned Judge dismissed the appeal.
2. In this Court it has been urged that the learned Judge's finding was not sufficient for the disposal of the case. At one place in his judgment the learned Subordinate Judge remarked that in a portion of the building sold a carpet factory was maintained and in another portion some cattle were kept and the rest of the house was used 'for odds and ends.' I have already quoted the actual finding of the learned Judge, viz., the house was required for cultivation of the land sold. It was only in discussing the evidence that the remarks quoted above were made.
3. In the case of Thakurji Maharaj v. Anant Bharthi AIR 1922 All 538, it was held that where a fixed rate tenant transfers his tenancy, the transferee has a right to occupy the house of the late tenant in the same way as the fixed rate tenant if the house is needed for effectual cultivation of the tenancy. I do not find myself in a position to differ from the ruling which was given by two learned Judges of this Court. There can be no doubt that much can be said on the other side. But after all it is a matter which would not frequently occur and it is necessary that the law on a point like this should be settled.
4. I think in the circumstances, the decree appealed against was right and I dismiss the appeal with costs.