1. This is a defendant's appeal arising out of a suit by a number of owners of houses constituting what is described as a mohalla. The mohalla appears to be self-contained with on one side a large gateway with two 'sehdaries,' one on each side. A person, Man Singh, who formerly owned one of the houses inside the mohalla but who sold it 10 or 12 years ago, has recently claimed to sell the two 'sehdaries' to one of the defendants who has proceeded to convert one or both of them into kothas. He is also alleged to have obstructed the flow of water through the gateway. But that is not now in dispute. The plaintiffs brought this suit for a declaration that they had joint rights of ownership in the two 'sehdaries.' These, before one set of the defendants had proceeded to alter their nature, were apparently in the common form of what are known as 'sehdaries,' i.e., they are largely open rooms with three doors to them, rooms such as are commonly occupied by watchmen or chaukidars. The mohalla apparently took its name originally from the first set of occupants who used to inhabit it, and who parted with their rights to a second set. There is, as might be expected in such a case as this, no very definite evidence as to who actually built the 'sehdaries' and the gateway. There is evidence that the individual houses in the mohalla have been transferred. The question that arose in this case was whether the transfer of an individual house carried with it any right to a joint share in the two 'sehdaries' and the gateway, and whether, if it did not, the right in the 'sehdaries' and the gateway remained in the original persons, whoever they might be, who were responsible for their construction; and thirdly, whether the defendants or any of them had succeeded in showing that they or their predecessors built and that they had a title in the sehdaries' and the gateway. It has also been suggested by counsel for the appellant that this last question would not arise at all unless the plaintiff had given evidence which required to be rebutted by the defence. In other words, that it lay upon the plaintiffs to prove that they had some title to interfere with the defendants before the defendants could be called on to explain their actions. That is to put in a single way the simple issue that has arisen. The lower appellate Court has held that from the nature of the neighbourhood and the buildings there would, in the absence of any other evidence, arise a presumption that the owners of the existing houses had a joint right in the 'sehdaries' and the gateway. This appears to me undoubtedly a reasonable presumption, always bearing in mind that it may only be effective in the absence of other reliable evidence to the contrary and might perhaps be easily rebutted.
2. Counsel for the appellant first argued that no interest could accrue to any of the present owners of houses by virtue of their sale-deeds unless there was a specification in those sale-deeds that the vendees were acquiring some right in the sehdaries and the gateway. The argument appears to me rather to beg the whole question. Reference is made to Section 8, T P. Act. That section says:
unless a different intention is expressed or necessarily implied a transfer of property passes forthwith to the transferrer the interest which the transferrer is then capable of passing in the property and in the legal incidents thereof.
3. It appears to me that if the transferrer had at the time of the transfer of his house actually, by virtue of owning that house, a joint interest in the 'sehdaries' and the gateway, that interest in the sehdaries and the gateway would be part and parcel of his interest in the property transferred, and we should therefore only be brought back to the original question; Did the owner of a house in that mohalla own by virtue of his ownership of that house also a right in the 'sehdaries' and the gateway
4. I have stated that it appears to me a most reasonable presumption in the circumstances of the case that the owners of the houses in the mohalla had a joint right in the 'sehdaries' and the gateway, and that in the absence of reliable evidence to the contrary effect would have to be given to that presumption. The defence have endeavoured to meet this by trying to set up ownership in the transferrer of the 'sehdaries' and the gateway i.e. by leading evidence of their title. The evidence led by them has been disbelieved and it has been characterised by the lower appellate Court as rubbish. The result is that, there is no evidence on the record to rebut the presumption to which I have referred. I think therefore that the lower appellate Court was right in giving weight to that presumption, and I. dismiss the appeal with costs.
5. The cross-objection, if there is one but neither counsel can tell me whether there is one or there is not, though its existence is suggested by the cause-list,, is dismissed with costs.