Iqbal Ahmad, J.
1. This is a plaintiff's appeal and arises out of a suit for a declaration that the sale-deed dated 30th June 1913, with respect to a shop executed by Ghasi Ram in favour of Latafat Ali, deceased father of defendants Wajid Ali and Ali Nabi was null and void and for possession of the said shop. The plaintiff and pro forma defendants are admittedly zamindars of Gauri Nawada and Ghasi Ram was a non-agricultural rai-yat residing in Gauri Nawada. The shop in dispute is situate in Gauri Nawada. The plaintiff's case was that Gauri Nawada is an agricultural village and that the residents of the said village have no right to transfer their houses with the right of residence. The defence to the suit was that Gauri. Nawada is a part of the town of Sam-dhin and is not an agricultural village,. and that there was a custom in Sana-dhin that entitled the owenrs of houses in Samdhin to transfer the houses themselves, and the right of residence therein to whomsoever they pleased, and that the zamindars of the soil had no right to question any such transfer. It was also alleged by the contesting defendants that the shop in dispute was not within the ambit of the plaintiff's zamindari and was situate in patti Sar-kar. This last mentioned contention of the defendants has been overruled by both the Courts below and we are no longer concerned with it in the present appeal.
2. The trial Court held that Gauri Nawada is a part of the town of Samdhin and that neither Gauri Nawada nor Samdhin is an agricultural village. It is also held that the custom set up by the contesting defendants was proved. On these findings the trial Court dismissed the plaintiff's suit. The plaintiff went in appeal to the lower appellate Court. That Court agreed with the findings of the trial Court and accordingly affirmed the decree of that Court. The plaintiff has now come up in second appeal to this Court and takes exception to both the aforesaid-findings recorded by the Court below. He urges that Gauri Nawada is an agricultural village pure and simple and that the custom set up by the defendants-respondents has not been proved. In the view that we take of the case it is unnecessary for us to enter into discussion of the question as to whether or not Samdhin or Gauri Nawada is an agricultural village. It is abundantly' clear from the observations made by the Courts below that Samdhin is not a place by itself but is a collective name given to four or five abadis that are situated close to each other and each having separate name. Gauri Nawada is one of those abadis. The incidents of tenure of the abadis of the villages that collectively constitute the town of Samdhin may not necessarily be and probably are not identical. The rights of the residents of each of the villages constituting the town of Samdhin with respect to their houses have to be determined by a reference to the incidents of tenure of the particular village in which the house is situate. Moreover the decision of each case must necessarily depend on the volume and quality of evidence adduced by the parties in each particular case.
3. Even if it be conceded that Gauri Nawada is not an agricultural village it seems to us that the finding recorded by the Courts below on the question of custom is decisive of the present appeal. But the correctness of that finding is also impugned by the plaintiff and he urges that the evidence in support of the custom found to have been established by the Courts below was legally insufficient to prove the custom set up by the defendants. To prove the custom set up by them the defendants relied on 12 deeds of transfer ranging between 1836 and 1917. The learned Judge of the Court below has noted those deeds in his judgment:. Apart from those documents the lower appellate Court placed reliance on an extract from the wajibularz of 1833, Ex. 1. The defendants also produced oral evidence in support of the custom set up by them. The learned Judge of the lower appellate Court accepted the testimony of the defendants' witnesses and held that the evidence, documentary and oral, produced by the contesting defendants established the custom set up by them. In view of the Full Bench decision of this Court reported as Municipal Board, Benares v. Kan-dhiya Lal : AIR1931All499 , a finding as to the existence or non-existence of a custom, in so far as it is a finding that a certain practice does or does not prevail, is a finding of fact. The question whether a prevailing practice has the essential attributes of a legally binding custom is a question of law. In this case therefore we must accept the finding of the lower appellate Court to the effect that the practice of transferring houses along with the right of residence by raiyats in Gauri Nawada prevails, as a finding of fact and we have only to decide whether that practice has the essential attributes of a legally binding custom.
4. The evidence in the present case was all one way. The defendants produced, as already stated a number of sale-deeds of houses by residents of Gauri Nawada and the plaintiff could not cite even one instance in which exception was taken to the transfer of houses along with the right of residence by the zamindars of Gauri Newada. In the Wajibularz provision was made that an asami or 'khush bash deha' (resident of the village) can build a residential house in banjar land with the permission of the zamindar and that an asami has no right to sell his house. The use of the word 'asami' in contrast with the words 'kush bash deha' and the absence of any provision in the Wajibularz forbidding the transfer of houses by the latter is significant. Obviously the word 'asami' was used in contradistinction with the words 'khush bash deha.' In the context in which the word 'asami' occurs it cannot but mean an agricultural tenant. While in the Wajibularz provision was made that asamis have no right to transfer their houses, the Wajibularz is silent as to the rights of 'khush bash deha' in the. house occupied by them. This necessarily leads to the inference that the prohibition to transfer that prevailed in the case of asamis had no reference to 'khush bash deha.' It is therefore clear that in the record of rights distinction was drawn, so far back as the year 1833, between the rights of an agricultural tenant and the rights of other inhabitants of Gauri Nawada as regards their power to sell their houses along with the right of residence. This fact coupled with the numerous transfers evidenced by the deeds relied on by the defendants and the oral evidence which was believed by the learned Judge of the lower appellate Court was more than sufficient to establish the existence of a validly binding custom of the nature set up by the defendants. The practice of transferring houses along with the right of residence found by the lower appellate Court is ancient and invariable so far as the residents of Gauri Nawada other than agricultural tenants are concerned, and therefore that practice has the attributes of a legally binding custom.
5. As already stated, each case must be decided on the evidence tendered by the parties in the case and in the present case we are not prepared to hold that the evidence was insufficient to justify the finding in support of the custom recorded by the lower appellate Court. We accordingly dismiss this appeal with costs.