1. This is a second appeal from the decree of the Subordinate Judge of Mainpuri, upholding the decree of a Munsif of that district, who dismissed the plaintiff-appellant's suit for recovery of possession of sites of two shops situate in village, Pharha in that district, and for demolition of certain constructions made thereon by the defendants-respondents.
2. The plaintiff's claim as set out in his plaint is that he is the sole proprietor of village Pharha; that the sites of the shops in question belong to him as proprietor, and that one Bansidhar, who was his reaya, was the owner of one of the shops, Badri, being the owner of the other. It was further alleged that Bansidhar and the heir of Badri left the village leaving the shops unoccupied, which subsequently fell into ruins. The plaintiff claims to be entitled to possession of the sites in terms of the Wazibularz of the village, which according to him, records a custom under which the occupiers of houses in village, Pharha, have no right to transfer except as regards the materials put up by them. The custom, above referred to, was apparently set up in the plaint in anticipation of the defence that the defendants have obtained by transfers from the original occupiers their right to the sites and the superstructure. The defendants pleaded that one of the shops in question belonged to Makkhan Lal alias Makka Mal, who mortgaged it with possession to Mulchand, father of defendant 2, as far back as 1895. As regards the other shop it was alleged that it was purchased by defendant, 1, Gulzari Lal, from Mt. Koka, widow of Bhola Nath. According to the defendants, Makhan Lal and Bhola Nath were the owners of the shops, and they or their successors-in-title had under the law or custom prevailing in the village a right to transfer not only the superstructure but also the right to occupy the shops. The custom recorded in the Wajibularz and set up by the plaintiff was specifically denied.
3. On the pleadings, above referred to, a number of questions arose for decision. As to whether Bansidhar and Badri were the owners of the shops in suit as alleged by the plaintiff or Makkhan Lal and Mulchand were the owners thereof, both the Courts below have foun'd in favour of the defendants, that the mortgage-deed and the sale-deed relied on by the defendants were executed respectively by Makkhan Lal and Mt. Koka, widow of Bhola Nath, who were the owners of the shops in question. The plaintiff's allegation that the same belonged to Bansidhar and Badri was held not proved. As a matter of fact, Bansidhar, Badri, Bhola Nath and Makkhan belonged to the same family. Bansidhar was alleged by the plaintiff to be alive, but the defendants alleged that he had. died childless without leaving any heirs other than the representative-in-interest of Bhola Nath and Makkhan. The plaintiff did not produce any evidence to prove that Bansidhar was alive. Apparently Bansidhar's name was introduced by the plaintiff because the defendants were in possession under title-deeds executed by the other members of the family to which Bansidhar belonged. In any case the finding arrived at by the Courts below as regards the ownership of the shops in dispute is conclusive in second appeal and the defendants' title cannot be questioned unless the finding of the Courts below on the question of custom is reversed by us.
4. The plaintiff's case in the main is that village Pharha is an agricultural village and that occupiers of houses in that village have no right to transfer their houses without the consent of the zamindar. They rely on the general custom prevailing in all agricultural villages in these provinces under which a reaya occupying a house can occupy the house built by him so long as he resides in the village, but cannot transfer his right of occupation. The plaintiff-appellant relies in addition on the Warblers to which reference has already been made. It records a custom to the effect that the inhabitants of this particular village, agriculturists and non-agriculturists, have no right to transfer their residential houses by way of sale, mortgage or hypothecation, but they can transfer the materials thereof provided the same had been put up by them. It also provides that the zamindar has no right to eject an occupier so long as the latter desires to live in his house. It goes on to provide that where the occupier of a house, whether he is a cultivator or not, leaves the village and adopts residence elsewhere, the proprietor is entitled to take possession of his house if the outgoing reaya has no heir.
5. It is contended on behalf of the plaintiff that he is entitled to possession of the sites in dispute under the general custom, to which reference has already been made, and also in terms of the clause of the Wajibularz mentioned above. It is argued that in view of the general custom and the provisions of the Wajibularz any alienations made by the reayas in favour of the defendants are invalid and confer no right of occupation upon the defendants and that in so far as the original reayas have abandoned the houses the zamindar is entitled to take posssession of the sites, the proprietary right being vested in him. The plaintiff's contention so far it rests on the general custom obtaining in agricultural in these provinces pre-supposes that Pharha is an agricultural village. Both the Courts below have considered such evidence as was available on the point and the circumstances bearing on it and have concurrently found that Pharha is not an agricultural village. The learned Counsel for the appellant has criticised the finding of the lower appellate Court principally on the ground that Pharha was an agricultural village in 1280 F. (1873) when the Wajibularz was prepared, and that any subsequent developments cannot affect local customs whether recorded in the Wajibularz or not, prevailing at that time. The finding of the lower appellate Court on this part of the case is as follows:
It is proved beyond doubt that the inhabitants of Pharha are not all agriculturists and the population has got a fair number of traders and business men. Kampoo Bazar is a big bazar, and the inhabitants of this locality are generally traders who have got nothing to do with the agriculturist class of Pharha. Under these circumstances it would be a misnomer to call Pharha a village or an agricultural village. It might have been a village in 1280 F. when the Wajibularz was prepared, but probably on account of its favourable situation it quickly developed into a big town and has become a good business centre.
6. It will appear that the learned Subordinate Judge has not found as a fact that Pharha was an agricultural village in 1280 F. He has merely assumed the possibility of the village being an agricultural village in 1280 F. His finding is based mainly on the present state of affairs. There can be no doubt that, in the circumstances described by the learned Subordinate Judge, Pharha, cannot now be considered to be an agricultural village. The learned advocate for the respondents has referred to the Gazette of 2nd June, 1869, which extended the application of Act 2 of 1856 to Pharha. This indicates that as far back as 1869 village Pharha was of sufficient importance and magnitude to warrant the application of Act 20 of 1856. It was for the plaintiff-appellant to establish by good evidence that Pharha, which is now not an agricultural village, was such in 1280 F. before he can ask us to presume the existence at that time of a custom generally obtaining in agricultural villages in these privinces. He has failed to do so, and we must therefore proceed on the assumption embodied in the finding of the learned Subordinate Judge quoted above.
7. If therefore village, Pharha, is not a purely agricultural village but is a business centre in that locality, and the shops in dispute are situate in What has been called Kampoo Bazar, which can in no sense be considered to be part of an agricultural area the plaintiff cannot avail himself of the presumption applicable to agricultural villages and can succeed only if he establishes that by the terms of grant to the original reayas their right of occupation was limited to them personally having no right to transfer the shops as such, or that there is a custom in Pharha, whether it be regarded as an agricultural village or otherwise that occupiers of houses and shops have no light to transfer. It is not even alleged by the plaintiff that by the terms of their grant the original reayas, whose transferees the defendants are, had a purely personal right of occupation in the shops. As regards the custom, which has been expressly pleaded by the plaintiff, he relies on the clause of the Wajibularz, which has already been referred to, and a compromise decree passed in 1907. If the Wajibularz is applicable to the shops in dispute and the custom therein recorded has not since been discontinued, it affords important evidence in support of the plaintiff's case. As regards the compromise decree of 1907, we do not think it is of any value on the question of custom. It refers to a case in which one Bhola Nath constructed a house on a vacant piece of land belonging to the plaintiff, who instituted a suit for demolition of the building and for possession of the site. A compromise was entered into between the parties. Bhola Nath undertook to occupy the house in terms of the custom recorded in the Wajibularz which was adopted by agreement of the parties. A decree was passed on the basis of that compromise. It was not a case in which the occupier of a house or shop had made a transfer. A trespasser who had taken possession of the plaintiff's land without his permission, constructed a dwelling house and subsequently agreed to become the reaya of the zamindar.
8. As against the evidence afforded by the Wajibularz the Courts below have relied on over 30 sale-deeds and mortgage-deeds executed by occupiers of houses in Pharlia in course of over 50 years. Reference has also been made to three execution sales of houses occupied by reayas and to a deed of wakf executed by a reaya in respect of Ms house. There was a volume of oral evidence on both sides. The lower Courts considered the whole evidence together with the Wajibularz, and arrived at the conclusion that the custom recorded in the Wajibularz has remained a 'dead letter.' We do not think that the finding which is one of fact, can be challenged in second appeal in the absence of any error of law. The learned Counsel for the plaintiff-appellant has assailed it on the ground that the mere fact that reayas made transfers of their houses is no evidence in rebuttal of the custom recorded in the Wajibularz. He argues that a reaya may sell or mortgage his house with the consent of the proprietor, or that the proprietor may not have known of the transaction of sale or mortgage. He referred to some decided cases in which it was held that the custom recorded in the Wajibularz was not, in the circumstances of these cases, rebutted by numerous sale-deeds executed by the reayas. On the other hand, we may refer to Tajammul Husain v. Banwari Lal : AIR1926All43 , in which it was held that the existence of a large number of sale-deeds, extending over a period of some 60 years, whereby tenants owning houses in the abadi had transferred them to strangers, without any objection on the part of the zamindars, was evidence upon which a finding as to the non-existence of the custom can be based. In our opinion, every case depends upon its own circumstances. It is always a question of fact as to whether a given piece of evidence warrants a certain inference or not. Taken with other circumstances it may be permissible to hold that a large number of sales and mortgages by reayas in a village completely negatives the existence of ' the custom recorded in the Wajibularz. It was open to the lower appellate Court to have considered the sale-deeds, mortgage-deeds and sale-certificates relied on before it to be of sufficient value to warrant a finding that the custom set up by the plaintiff, though recorded in the Wajibularz, has not been proved. In each case the question is one of the weight of evidence and if after considering the entire evidence the lower appellate Court records a finding without contravening any rule of law such finding is conclusive in second appeal.
9. It is possible to construe the finding of the learned Subordinate Judge as the custom in question never existed or that it did exist in 1280 F. but has been discontinued since. Whether it is one or the other is perfectly immaterial. The fact remains that if the finding be accepted, the present existence of the custom is negatived. The finding of the lower Court has not been challenged on the ground that a previously existing custom could not be discontinued. We must therefore hold that the plaintiff-appellant, whose success in the present case depended entirely upon proof of the custom, has failed to establish it.
10. We may also observe that the Wajibularz of village, Pharha, relates to dwelling houses occupied by agricultural and non-agricultural reayas. It makes to reference to shops situate in the business centre of the town. There is nothing in the clause which may justify the view that the owners of shops in Kampoo Bazar, where the shops in question are situate, have no right of transfer of the shops belonging to them. Considerations applicable to ordinary dwelling houses do not necessarily hold good as regards shops the tenure of which may stand on a different footing. It is not necessary for us to lay any further stress on this aspect of the case in view of the more comprehensive finding arrived at by the learned Subordinate Judge.
11. The defendants also raised the question of limitation. It was urged by them, relying on the mortgage-deed of 1895 and the sale-deed of 1909 under which they claim, that they have been in possession for over 12 years and that the plaintiff's suit, which was brought in 1927, was barred by limitation. The learned Subordinate Judge upheld the view of the trial Court that the plaintiff-appellant's suit was barred by limitation, but observed that in view of his finding' on the question of custom it was not necessary to dismiss the plaintiff's suit on the defendants' plea of limitation. We take this to imply that the defendants' adverse possession as transferees of the right to occupy was upheld by both the Courts below, but they preferred to base their decree on the question of custom. In the view of the case we have taken, it is not necessary for us to express any dissent from the lower Courts on the question of limitation. If the plaintiff-appellant had succeeded in displacing the finding of the lower appellate Court on the question he would have been faced with the alternative ground on which the decree of the Court below could be supported. The result Is that the appeals fails and is dismissed with costs.