Iqbal Ahmad, J.
1. This is a defendant's appeal and arises out of a suit for possession of the site of a house by removal of the materials therefrom. The plaintiff admittedly is the zamindar of the abadi in which the house in dispute is situate.
2. The house in dispute belonged to Defendant No. 2, who was a mere raiyat in the village, and who, by a sale-deed dated the 7th November 1921, transferred the said house to Defendant No. 1.
3. The plaintiff's case was that according to the custom prevailing in the village in question the occupiers of the houses are only competent to sell the materials of their houses but cannot sell the site and that Defendant No. 2, contrary to his right transferred his house along with the site and all that Defendant No. 1 was entitled to was to remove the materials of the house, but was not entitled to the site of the house.
4. The suit was contested only by Defendant No. 1, mainly on the ground that the custom set up by the plaintiff appellant did not prevail in the village in question, and that the occupiers of houses in the said village are the absolute owners of their houses and are competent to sell not only the materials of their houses but the site as well. In fact it was asserted by the defendant that there was a custom prevailing in the village which entitled the occupants of houses to sell not only the materials but the site of their houses as well.
5. I need not set out the other grounds urged in defence, as those points have not been raised in this appeal.
6. Both the Courts below overruled the pleas taken in defence, and decreed the plaintiff's suit. On the appeal coming up for hearing under Order 41, Rule 11, before a learned Judge of this Court, the learned Judge by an order dated the 30th May 1924, issued notice because of certain observations to be found in the case of Faiyaz Ali v. Rekhab Das A.I.R. 1921 All. 46.
7. In proof of the custom set up by defendant-appellant he relied on eight sale-deeds executed by raiyats of the village, by which not only the materials of the house but the site was also sold, and the first point argued before me by the learned Counsel for the appellant is that the burden of explaining the circumstances under which the eight sale-deeds were executed by the raiyats of the village in question, was on the zamindar, and that in the absence of any explanation by the zamindar, the sales in question must be attributed to the existence of a custom of the description pleaded by the defendant-appellant. It is further argued by him that the evidence in this case was sufficient to establish the custom set up by the defendant-appellant and the Courts below have erred in arriving at a contrary conclusion.
8. A zamindar is to be presumed to be the owner of every inch of the ground within the ambit of his zamindari, and any person who sets up a right in derogation of the ordinary and universally recognized rights of the zamindar must prove his assertion by cogent evidence. A custom of the description pleaded by the defendant-appellant in the present case is a custom which on the authorities of this Court, can only be proved by clear and cogent evidence and the claim of a raiyat to transfer the site of his house must be so proved: vide Muhammad Usman v. Baby  8 A. L. J. 61.
9. The question that I have to consider is whether in the absence of any explanation by the plaintiff-respondent, as to the circumstances under which the eight sale-deeds relied on by the defendant-appellant were executed, is the custom set up by the defendant-appellant to be held as proved. In my opinion there may be cases in which because of the large number of transfers by raiyats extending over a long number of years, the conclusion in favour of the existence of a custom entitling the raiyats to transfer the site of their houses may become so irresistible, that but for an explanation from the zamindar as to the circumstances which led to those transfers, the Court may be compelled to hold that the custom set up by the raiyat is proved. But it is impossible to lay down any inflexible rule of universal application as to in what cases it will lie on the zamindar to explain the transfers made by the raiyats. Each case must be decided on its own facts and circumstances. Where the number of transfers relied on in support of the custom entitling the raiyats to transfer the site of their houses is small, the burden does not lie on the zamindar to offer any explanation as to those transfers. This was the view taken by a Bench of this Court in the case of Tajammul Husain v. Banwari Lal : AIR1926All43 . True it is that it was held in the case of Faiyaz Ali v. Rekhab Das A.I.R. 1921 All. 46, referred to above, that it lay on the defendant-zamindar in that case to explain away the sale-deeds and the sale certificates that had been relied on by the raiyat in support of the custom alleged by him, but as I read the observations of the learned Judges in that case it appears tome that those observations were confined to the facts and circumstances of the particular case before the learned Judges and any general rule of law was not laid down in that case.
10. In the present case there were eight sale-deeds produced by the defendant-appellant to substantiate the custom set up by him and the oldest of these was of the year 1899, the last in the series being of 1918. It is to be remembered that those sale-deeds that were executed within 12 years prior to the institution of the present suit, could not be taken into account in considering the question of the existence or non-existence of the particular custom, inasmuch as the zamindar could impugn the validity of those sale-deeds by a suit instituted within 12 years from the date of those deeds. This consideration would further reduce the number of the transfers relied upon by the defendant-appellant and as such in this case the burden did not lie on the plaintiff zamindar to explain the circumstances in which those sale-deeds were executed by the raiyats.
11. In my opinion the lower appellate Court was perfectly right in holding that the evidence tendered by the defendant-appellant in support of the custom set up by him was wholly insufficient to prove that custom. For the reasons given above I dismiss the appeal with costs including in this Court fees on the higher scale.