1. The plaintiffs of the Court of first instance are the appellants before this Court. The respondent No. 2, Chheda Lal, transferred his house together with the right of residence on the site, in favour of the respondent No. 1 Hori Lal, by a deed dated the 9th October, 1917. Seven years later, on 29th August, 1924, the suit, out of which this appeal has arisen, was lodged by the appellants for recovery of possession of the site giving Hori Lal an option to remove the materials of the house. The plaintiffs' case was that they were zamindars of the site, being the zemindar of the Mahal Bhawani Prasad, and, as a mere tenant of the site, Chheda Lal had no right to transfer it to Hori Lal.
2. The defence was that village Yakubganj, where the house is situated has been a town and not a mere agricultural village and there is no presumption in favour of the site of the house being the property of the so-called zemindar of the village.
3. The defence further was that the vendor and his successor had been in adverse possession of the site and that there was a usage which permitted such a transfer.
4. Three issues were framed by the learned Munsif who tried the suit. The first one related to the question of plaintiff's ownership and the third one related to the plea of adverse possession. The second issue ran as follows: 'Whether by virtue of any custom prevalent in the village, owners of houses in the abadi are the owners of the sites of the houses and are competent to transfer the same?'
5. The issues Nos. 1 and 3 were not decided and the learned Munsif did not apply himself to the question, viz., whether the owners of the houses in the abadi were also the owners of the sites. He decided the remaining portion of the second issue, namely, whether, by custom, the owners of the houses in the abadi in the village of Yakubganj were entitled to transfer their right of residence in those houses.
6. The decision of the learned Judge being in the affirmative, the plaintiffs went in appeal but were unsuccessful.
7. In second appeal it has been contended that the evidence that was before the Court below was insufficient to enable them to draw from it, the inference that a custom like the one set up existed.
8. In Rama Bilas v. Lal Bahadur 30 A. 311; A.W.N. (1908) 112 : 5 A.L, J.456 : 4 M.L.T. 169 it was laid down by a Full Bench of this Court that a second appeal would be maintainable on the question of custom where the question was whether the lower Appellate Court has acted upon illegal evidence or on evidence legally insufficient to establish an alleged custom. This being so, the scope of this appeal is very much limited and I am not called upon to express any definite opinion of mine as to whether the evidence on which the Courts decided the issue would or would not have been accepted by me as good enough in the circumstances of the case. All that I have to see is this. Whether the evidence was sufficient from which a reasonable Judge could draw the inference, namely, the custom existed. This remark is only as a matter of law.
9. The judgments of the Courts below have been read out and the learned Counsel for the appellants has handed over to me a list of the documents produced in the case.
10. It appears that no less than 11$ instances of sales of sites with or without the building were cited, supported by documents registered and unregistered. By these documents houses with sites and in some cases dilapidated houses with sites and in a few cases sites without an existing house have been transferred by occupants of houses in the village. The oldest instance is as old as 1831 and the latest as new as 1922. There was oral evidence as well in support of these cases. Against this evidence there were two wajib-ul araiz, one of 1833 and the other of 1872, in which the zemindars stated that people who were allowed to settle on vacant land and their heirs could live on the site, but after their death the house lapsed to the zemindar. The wajib-ul-araiz are silent as to the right of the transfer of the occupants. Nothing is said as to whether the house in question existed before 1833. The learned Counsel for the appellants has quoted to me a remark from a judgment of the Punjab High Court, in which it was indicated that such a statement in a wajib-ul-arz as has gone above, negatived the existence of a custom of transfer. Besides the two wajib-ul-araiz there were three judgments, in two of which the existence of the custom was negatived. In the third, there was no clear issue as to custom The judgments are all of recent date and could be admitted into evidence under Section 13 of the Evidence Act only as particular instances in which the custom was recognised or departed from.
11. The learned Counsel for the appellant has argued that in this Court the old cases laid down the view that where an occupant of a house in a village abadi set up a plea of a right of transfer, under a custom it was for the occupant to establish the circumstances under which the transfers, on which he relies as instances, were made. He argued that this view has the full support of the Punjab High Court and he quoted the case of Sewa Singh v. Ghulam 82 Ind. Cas. 522 : A.I.R. 1923 Lah. 467 where two learned Judges found themselves unable to hold in favour of the custom, although over 300 instances were cited before them. I need not express any opinion on the Lahore case. It is enough for me to say that where the number of instances is so large and where the instances extend over such a long period of time as to force the instances on the notice of the zamindar, it would be for the zamindar to explain why he allowed time after time, year after year, the transfers to go on without a word of remonstrance from him. Where the instances are only few, I would not allow a ryot to establish the custom by them unless he also shows that the instances, although few, were good enough to attract the notice of the zemindars and to establish conclusively that thezemindars acquiesced, because the custom existed. In my view there is nothing in what was said in the case of Muhammad Usman v. Babu 9 Ind. Cas. 314 : 8 A.L.J. 61 and Rama Bilas v. Lal Bahadur 30 A. 311 : A.W.N. (1908) 112 : 5 A.L, J.456 : 4 M.L.T. 169 which should militate against the view laid down in Faiyaz Ali v. Rekhab Das 61 Ind. Cas. 24 : 19 A.L.J. 104 and Tajammul Husain v. Banwari Lal 88 Ind. Cas 752 : 23 A.L.J. 932 : L.R. 6 A. 179 Rev. : A.I.R. 1986 All. 47 : 48 A, 77. In the later cases, the instances were numerous, (the two earlier cases do not show how many instances were brought to the notice of the Court) and it was said that in the circumstances it was for the zemindars to explain how the transfers came to be brought about if no custom existed.
12. Coming back to the case before me, as I have said, the instances cover a period of 90 years and are no less than 118 if we take the number of sales alone. The cases of mortgage are 29, over and above the cases of sale. As regards the decrees, it appears that the present appellants came into the village in recent years and being literate people were able to protect what they thought was their own interest against the poorer inhabitants of the village. Unfortunately a civil litigation is, mostly, a question of money. The two recent instances in which the custom was negatived, as the result of litigation, will not be sufficient, in my opinion, to outweigh the overwhelming evidence adduced on behalf of the respondents.
13. The result is that I find that there was sufficient evidence on which the Courts below could have found the existence of a custom and the appeal fails. It is hereby dismissed with costs.