1. This is an appeal by an un-successful plaintiff, the Bharatpur State against the Secretary of State for India in Council, in which, the plaintiff's claim was for possession of a certain house. The house in question was admittedly situated within the limits of a village known as Mauza Sakitra. Without going further into the arguments which have been addressed to us on the point, I am content to say that I accept the argument of the defendant respondent to the effect that it is also situated within the limits of the town of Gobardhan. The last owners and occupiers of this house mentioned either in the plaint or in the written statement were two persons of the name of Dip Chand and Mansa Ram, who were Sahukars by profession and resided and carried on business in the said house. It is common ground that both these persons are now dead and have left no heirs en-titled to inherit their property. The de. fendant, acting through the Collector of Muttra, has taken possession of this house and its site in assertion of his claims as ultimate heir to the property of a deceased person. The plaintiff's claim is that he is the owner of the site on which the house stood, that Dip Chand and Mansa Earn were no doubt the owners of the materials of the house and had a right of residence therein, which could have descended to their heirs if any. Nevertheless, according to the plaintiff's case, Dip Chand and Mansa Ram had no transferable interest in respect of the site or the right of residence thereon, and were, therefore, in respect of this house merely the owners of a limited interest. With regard to the question of law on which this claim is based there has been no argument before us. Both parties are agreed that the law on the subject is correctly Jaid down in the case of Tulshi Ram Sahu v. Gur Dayal Singh 7 Ind. Cas. 231 : 33 A. 111 : 7 A.L.J. 101 (F.B.). It is conceded on behalf of the defendant-respondent that if Dip Chand and Mansa Ram possessed in respect of the property in suit merely a limited interest, then this, interest of theirs could not be the subject of escheat to the Crown and the claim of the plaintiff as owner of the soil cannot be resisted. The case for the defendant, however, is that the house in suit, being situated within the limits of a town, is not subject to the ordinary law governing the relations between occupiers of houses and the ground landlord in the inhabited sites of agricultural villages in these provinces, and that as a matter of fact Dip Chand and Mansa Ram could have sold the house in suit at any time with the right of occupation and residence and that the purchaser would thereby have obtained a good title, which could not have been contested by the Bharatpur State. The plaintiff has rested his case mainly upon two sets of documents, the Settlement Papers prepared in the year 1850, which are printed at pages A14--A23 of our record, and secondly, a certified copy of the wajib-ul arz or Record of Rights of Mauza Sakitra prepared at the Settlement of 1877 A.D. The learned Judge of the Court below has found that, on a true interpretation of the terms of that wajib-ul-arz the custom intended to be laid down is that all residents in houses situated within the limits of Mauza Sakitra, even though their houses may form part of the town of Gobardhan, have no proprietary right in anything except the materials of the houses, they cannot sell the site, or sell the house along with a right of residence on the said site; and in the event of the occupier of such a house abandoning the same, or dying without legal heirs, the proprietor of Mauza Sakitra, that is to say, the Bharatpur State, will be entitled to possession of the house along with its site. Nevertheless the learned Subordinate Judge has come to the conclusion that the custom thus stated in the wajib-ul-anz of 1877 is not correctly stated and is not a custom binding as between the parties to this litigation. He says that the document in question as it stands is not a record of custom at all but merely a claim preferred on behalf of the proprietor of the Bharatpur State by his agent. It does not purport to have been signed by any person representing the interests of Dip Chand and Mansa Ram, would not have been binding upon them and would not even have formed a particularly strong piece of evidence against them, in the event of litigation between the Bharatpur State and any transferee of theirs. From this the Court below has gone on to hold that the conditions laid down in this document are not binding on the defendant and that, in view of other evidence on the record, it must be taken to be proved that Dip Chand and Mansa Ram, along with all other residents in the town of Gobardhan, possessed an absolute right of transfer in respect of the houses occupied by them, On this ground the Court below has affirmed the right of escheat claimed by the Secretary of State as defendant and has dismissed the plaintiff's suit. In the memorandum of appeal before us a point is taken as to the alleged wrongful exclusion of certain documentary evidence by the trial Court, but it has been admitted in argument that this plea cannot be pressed. For the rest, the appellant's case is that he is entitled to succeed under the terms of the village Record of Rights and that, failing this, he would, in any event, be entitled to succeed on the ground that be is the proprietor of the site and must be presumed to posses in respect of any house standing upon his land the ordinary rights of proprietors of agricultural lands in respect of the inhabited sites appertaining to the Mauzas of which they are the owners. A great deal of the argument before us at the hearing of this appeal was devoted to the question whether this Mauza Sakitra, or more especially the particular mahal of Mauza Sakitra in which the disputed house is situated, was or was not to be regarded as a purely agricultural village. The most important documentary evidence on this point is to be found in the Settlement Papers of the year 1850, to which reference has already been made. It appears that in that year the land of Mauza Sakitra was settled by Government with the Bharatpur State in a somewhat peculiar manner. The village was divided into two mahals of 15 biswas and of 5 biswas, of which the former alone was assessed to revenue. With regard to the smaller mahal of 5 biswas a revenue-free grant was made in favour of the Bharatpur State, subject only to certain small payments on account of road cesses and chaukidari dues, or local Police charges. The papers before us contain a complete description of the land appertaining to this revenue-free mahal of 5 biswas, I note more particularly that the cultivated area of this mahal amounted to a little less than 41 per cent, of the whole: that even if the land described as old fallow' be added to the cultivated area, the total of the two comes to barely over 53 per cent, of the whole. Almost 22 per cent. of the entire area consists of groves and the rest is made up of thorough fares, inhabited sites, tanks and unculturable land. Taking this description of the land along with the oral evidence, by which it is fully established that the inhabited site of village Sakitra forms, and has long formed, an integral part of the town of Gobardhan, I should be quite prepared, if the case turned upon it, to hold that the house in suit was not situated upon land forming part of the inhabited site of an ordinary agricultural village, so as to make the principles laid down by this Court in respect of the proprietorship of land in such village sites applicable in themselves to the land now in suit. What impresses me, however, on the other side is that this is a litigation between the owner of Mauza Sakitra and the Government, that is to say, the very authority which granted to him revenue-free proprietary rights over the soil of this 5 biswas mahal of Mauza Sakitra. I take it from the defendant's own case that in the year 1850, when this grant was made, the only inhabited site appertaining to Mauza Sakitra consisted of houses, shops and the like which formed part of the town of Gobardhan. Nevertheless Government took a portion of this town and, treating it as the inhabited site or abadi of Mauza Sakitra, granted it to the Bharatpur State as forming part of the revenue free mahal of 5 biswas in the said Mauza. Presumably Government meant something by making this grant and by including in the area so granted that portion of the town of Gobardhan in which the house now in dispute is situated. In an agreement which was taken from the Bharatpur State at the Settlement of 1850 a number of details are given regarding the inhabited area included in the 5 biswas mahnl. It is stated that there is a Katra, or large enclosure, in which there are a number of houses or shops, which have been constructed by the proprietor of the land, that is to say by the Bharatpur State, that all the other houses at that moment standing have also been constructed by the same and that the Bharatpur State is not merely the owner of the soil but the owner of all the houses and of the aforementioned Katra standing in the abadi belonging to the 5 biswas mahal. It is asserted that the proprietor has every right in respect of the same and that, as regards the waste land then in existence, no one will be entitled to build upon it without his permission. The agreement in question appears to have been propounded by a duly authorised agent on behalf of Maharaja Balwant Singh, Raja of Bharatpur, and it is endorsed as having been accepted and ordered to be placed upon the record. At the subsequent Settlement of 1877 A.D. an elaborate paragraph was drawn up and inserted in the Record of Rights of Mauza Sakitra regarding the inhabited land appertaining to the village. This shows that there was no other inhabited site appertain ing to the said village except that portion of the town of Gobardhan- in which the house now in suit is situated. Nevertheless it was provided that if the cultivators, whether possessing occupancy rights or tenants at will, and also the riaya, or tenants generally, have built any houses, cattle sheds or other enclosures on this abadi site, their rights in the same are limited to the materials. They can sell the materials if they like, but not the site; and the meaning of these provisions I take to be that they have no transferable right of residence. There are other provisions in which more general words are used, such as 'bashindgan' (residents) and in which the word asami is used for tenant in place of. riaya. In this connection it is expressly provided that, if any 'asami' dies without an heir, the house occupied by him will pass to the Bharatpur State as proprietor of the site. The question of the interpretation of these provisions has been before the Courts on other occasions. A good deal of reliance is placed on behalf of the defendant-respondent on the result of a litigation which took place in the year 1906. The judgment is printed at page 6 of the book before us and in this judgment reference is made to the result of a previous litigation of the years 1874-75. Broadly speaking, it is sufficient to say that in this former litigation individual residents in the town of Gobardhan, and in that part of the town which forms the abadi of the 5 biswas wiahal of Mauza Sakitra, succeeded in asserting against the Bharatpur State, the present plaintiff, a right to sell their houses together with a right of residence in the same. The decision in the suit of 1906 proceeds upon a certain interpretation of the provisions of the wajib-ul-arz of 1877, according to which those provisions are limited in their application to agricultural tenants. In the present case the learned Subordinate Judge has refused to accept that interpretation. He holds that the words in the wajib-ul-arz, as they stand, are wide enough to include all residents (bashindgan) in houses situated on the abadi in question. The point has been argued again before us, but I feel no hesitation in agreeing with the interpretation put upon this document by the Court below. I think the word 'riaya' in itself is very general and is intended to extend the provisions in question to persons other than the occupancy and non-occupancy cultivating tenants spoken of immediately before. I think also that the word asami is wide enough, especially in this particular context, to include all residents of the abadi, even though not cultivating tenants or even agriculturists. What has determined the decision of this case in the Court below has been the evidence of . a number of instances in which residents of houses situated within the area in suit, that is to say, within the abadi of the 5 biswas mahal of Mauza Sakitra, have exercised a right of transfer in respect of their houses, along with the right of residence in the same. In two of the instances already referred to, the rights of the tenants in question were affirmed against the Bharatpur State after litigation. Evidence has also been given of at least four instances in which, on the death of the owner or occupier of a house within the area in question without leaving any heir, the right of escheat was successfully asserted on behalf of the Crown, apparently without any opposition by the Bharatpur State. Moreover, as the learned Subordinate Judge correctly points out, the evidential value of such a document as this wajib-ul-arz of 1877 as against the occupiers of houses within the area in question at the time when . this document was drawn up is not great. There is nothing in the document itself to show that any enquiry was made from these persons as to whether the rights recorded in favour of the proprietor of the soil, and to the prejudice of themselves, in this document were admitted by them to exist. The case, however, seems to be altogether otherwise in a litigation in which the contesting party is the Secretary of State for India in Council, that is to say, the Government itself. The Government made the original grant of this 5 biswas revenue free mahal in the year 1850; and if it did not intend to convey to the grantee, namely, the Bharatpur State, in respect of that portion of the site of the town of Gobardhan which was included in the mahal of 5 biswas of Mauza Sakitra, the ordinary rights of a proprietor of an agricultural village in the inhabited site of such a village, it is difficult to see what rights it intended to confer by the grant of the particular area forming this inhabited site. It accepted at the time from the representative of the Bharatpur State a document which expressly admitted full ownership on the part of the said proprietor in respect of all existing houses on the abadi in question and recognised the justice of his claim, that, no one should in future build any house upon the unoccupied land appertaining to the. said abadi without permission. Then at the Settlement of 1877 a .Record of Bights was drawn up under the direction of Government and included in the Settle-merit Papers, in which, as I hold, the right now claimed by the plaintiff in respect of the land in question is once more recognised. I do not wish to complicate what seems to me a tolerably straightforward case by suggesting that these Settlement Papers of 1850 and 1877 can be used so as to estop the Government, that is to say the defendant in this suit, from asserting that the papers in question were incorrectly prepared and that the rights acknowledged in these papers in favour of the plaintiff never in fact existed. I think, however, that it is very difficult for the defendant to get round these documents, otherwise than by proving some definite case of adverse possession on the part of the deceased owners through whom the defendant claims. It is not suggested that any case of this sort can be set up. On the evidence as it stands, as between the parties to this present suit, I think it must be held that the plaintiff has sucess-fully discharged the burden of proof which lay upon him, and that Dip Chand and Mansa Ram did not possess an absolute interest, alienable at their will and pleasure, in respect of the property now in suit, but merely a limited interest which cannot be the subject of escheat to the Crown. The Full Bench case of this Court, Tulshi Ram Sahu v. Gur Dayal Singh 7 Ind. Cas. 231 : 33 A. 111 : 7 A.L.J. 101 (F.B.), to which reference has already been made, was a case of the devolution of a fixed rate tenancy; but the arguments there used seem to me to apply with a great deal of cogency to the facts of the present case. I. would almost go so far as to say that, unless the, defendant can show that the effect of the Settlement of 1850 in favour of the Bharatpur State was not to grant to the proprietor of the 5 biswas mahal in village Sakitra any substantial rights of ownership in respect of what was described in the papers of that settlement as the abadi appertaining to this mahal, the defendant in the present suit cannot successfully maintain that Dip Chand and Mansa Ram possessed anything more than a limited interest in the house in question and in its site. Practically it seems to me that in taking possession of this house the defendant is derogating from the grant made in 1850 in favour of the Bharatpur State. The fact that there have been 3 or 4 other instances of similar encroachments on the part of the defendant, which have not been contested by the plaintiff, cannot take away from the plaintiff rights in respect of the land now 'in suit, if those rights are sufficiently established, as I hold them to be, by the plaintiff's documents of title, namely, the Settlement Records of 1850 and of 1877. In my opinion, therefore, we must accept this appeal, set aside the decree of the Court below and decree the plaintiff's claim as brought with costs throughout, including in this Court-fee on the higher scale.
2. I think this is a1 clear case. Mr. Motilal Nehru's argument on the document of September 1850 is well founded. That document seems to me consistent only with the existence at sometime or another of an old agricultural village, and it is clearly proved that this house was in that village. The indications of an agricultural village, unless I am much mistaken, are overwhelming.
3. Village customs, uncultivated land, a former settlement, and field maps are referred to from time to time Fairs are said to take place. There are no village expenses but the Raja's Karinda manages the village. The income from sewai items is taken by the weighmen on behalf of the Raja. No taxes are fixed but blankets are taken from the shepherds every year and various contributions in kind are raised from a carpenter, a blacksmith and a barber. The duties of the chamars are elaborately defined ; and t the whole thing seems to me to contain overwhelming internal evidence of the character of the collection of houses, and of the cultivated and uncultivated lands, with which it deals, The corresponding khasra speaks of the tenants residing in the village, including the carpenter already referred to, and by a singular coincidence a person of the same name, carrying on business as a bania, who bears a suspicious resemblance to the person through whom it is suggested that the Government are now entitled to escheat. This person's house is in a Katra (which I understand to be, whether in village or in town, a nondescript collection of every kind of house) in this village and I am satisfied that the house in question, which it is admitted on the part of the Government is 100 years old, was situated in that Katra at that date. The map is even more significant. It shows the position of the tank which has been much spoken of, and of the serial No. 1, and it also shows what, I am satisfied, at that date was the south-east boundary of this abadi where it abutted upon the town of Gobardhan. I think the judgment of the Court below, reading between the lines, proceeded upon the assumption that this was really common ground as the case was contested in the Court below. It is perfectly clear that the point now relied upon on behalf of Government was not specifically raised by the defence and that paragraph 3 of the defence, which contains the real contention of the Government, dealt with the class of the property or class of occupier, and not with the geographical situation of the building. The wajib ul-arz -has been dealt with by my brother. I accept his construction of the words which I do not myself profess to understand, but if this is correctly translated it would clearly bear the meaning which has been put upon it by the learned Judge in the Court below, The view I take about these documents is this ; not that they are necessarily binding on the Government, not that the Government could not prove by affirmative evidence that the real state of facts was something quite different, or that there is any estoppel, but that as against the Government they contain entries which the Government must be taken to have accepted as an accurate record of the then existing state of facts. They raise a very strong presumption of fact and they get rid of the difficulty which so constantly attends the discussion of the meaning of wajib-ul-araiz in this country when no body is left alive to testify to the true facts, and each contending party relies on something or another tending either to strengthen or to qualify the effect of the wajib-ul-arz. The plaintiff, therefore, starts with what I may call a trump card. The Government Advocate attempted to get rid of the effect of this piece of evidence in two ways, firstly, by the description and history of the condition of the town of Gobardhan contained in the Gazetteer; secondly, by the evidence of sales and dealings largely coming from the side of the plaintiff and admittedly quite inconsistent with the plaintiff's case. Assuming for the moment that every statement in the Gazetteer is correct and that we are entitled to take judicial notice of its contents as facts established without other proof, it seems to me that every one of them is quite consistent with the plaintiff's case. They do not speak in the present tense of the existing conditions from an earlier date than 1884 but I will assume, as appears to be the fact, that there was always in or about this tank, which has great historical associations and great attractions for itinerant pilgrims, a town which through the growth of pilgrimage, commerce, fairs and so forth and through local development, generally called progress, has overrun and in substance, so far as identity is concerned, submerged its humbler neighbours. Towns in England, I do not know if it applies to India, frequently owe their development to people who wish to live near them and not in them. Everything points to the remains of this village having been submerged in the superior growth and development of the old town which apparently was originally only a neighbour. However that may be, I agree with the contention made on behalf of the appellant that once it is established that rights of this kind to property have existed they cannot be affected by a change in the character of the neighbourhood only. I think the sales to some extent admitted on the plaintiff's side, and for the rest proved by the defendant's witnesses, are quite intelligible upon the same footing, In fact in a conglomerate neighbourhood of this kind it is not unnatural to find instances entirely inconsistent with one another within a very short distance. The Government Advocate said that there was really no evidence on behalf of the plaintiff of any similar transaction to that which he is setting up in this case. I think in that respect he was wrong. There is no documentary evidence and it is certainly Surprising that the plaintiff has failed to produce any. But there is positive and direct evidence of a considerable amount given by the plaintiff's Vakil or Agent, or Pleader, whoever he may be, of possession by the plaintiff Raja, which it is alleged has been recovered under similar circumstances to those relied on by the plaintiff in this case. Nothing would have been easier for the Government than to give direct evidence contradicting these allegations. In the absence of some evidence I think it must be taken to be proved that the Raja as Zemindar has, in previous cases in this abadi, resumed possession of houses which apparently were not occupied by persons .who could be correctly described as agricultural tenants.
4. I always speak with, hesitation about questions of custom because there are few questions about which misconception so easily arises. It seems to me that this case at any rate is a question of contract between the original Zemindar and the former occupiers of this property, and the question of what that contract was is one which we are called upon to presume in the absence of direct evidence about it. But if it does turn upon a question of custom, the learned Judge of the Court below has found in favour of the plaintiff in spite of everything that has been said in support of the contrary by the Government Advocate. The learned Judge of the Court below rightly said that the plaintiff was bound to prove the existence of the custom if he relied upon it, and went on to hold that it did exist, and then by an unfortunate misdirection, for which I can find no explanation in the judgment instead of giving effect to that finding, went on to Say that 'the general customary law of escheat to the Zemindar no longer holds good in' Gobardhan,' If that means anything it means what Mr. Motilal argued is not the law, namely, that owing to the changed condition of the neighbourhood the former rights of the Zamindar 'have been lost. That ground is clearly fallacious and I see no other ground upon which the decision for the defendant can be supported. 1 agree, therefore, with my brother that this appeal must be allowed.
5. We allow this appeal, set aside the decree and order of the Court below and decree the plaintiff's suit with costs in both Courts.