1. This appeal arises out of a suit for possession of a house. The plaintiffs are the zemindars of mahal sufed in the village of Nekpur, which is a suburb of the town of Bareilly. The defendant No. 2 Baldu is an agricultural tenant residing in a house situated on the village site. On the 16th of July 1906 he sold to the defendant No. 1 Radha Kishun a two-thirds share in the house for the sum of Rs. 655-12-6 and placed him in possession thereof. Plaintiffs alleging that Baldu had no right to transfer any interest in the land, in fact had no right to transfer any thing beyond the materials of his house, sought to eject him and defendant No. 1 therefrom and to gain possession of both house and land, The suit as brought was in respect of the whole of the house. The defendant No. 1 in reply set up a custom in the village whereby a tenant is supposed to have a right to transfer not only the materials of his house but also an interest in the land, presumably a right of residence therein. The defendant No. 2 supported him in this and pointed out that he had transferred only a two-thirds share in the house and not the whole.
2. The Court of first instance, in a careful and exhaustive judgment held that the evidence produced by the defendant to support the alleged custom was insufficient to establish it and gave the plaintiffs a decree for possession for the site, allowing the defendant No. 1 a period of two months within which to remove the materials.
3. On appeal by the defendant No. 1 alone the lower appellate Court held that the custom alleged was proved by the evidence and it, therefore, dismissed the plaintiffs' suit in tola. The defendant No. 2 was no party to this appeal.
4. Plaintiffs on appeal to this Court urge that the evidence on the record is insufficient to establish the custom alleged on behalf of the defendants. It was held in Ram Bilas v. Lal Bahadur 30 A. 311 that where a question arises as to the existence or non-existence of a particular custom, and the lower appellate Court has acted upon illegal evidence, or on evidence legally insufficient to establish an alleged custom, the question is one of law and the High Court is entitled in second appeal to consider whether the finding is based upon sufficient evidence. In accordance with this ruling it is open to us to examine the evidence, and to see whether or not it is sufficient to establish the custom set up.
5. The learned Munsif has given a full and complete analysis of that evidence documentary and oral. The documentary evidence was arranged by him into four classes. It is admitted that the first three classes do not support the custom alleged. In regard to the fourth class of documents, they are five in number. Of these two exhibits Q and R. admittedly do not support the custom. Only three documents remain the earliest of which is dated the 31st of March 1891. These three documents evidence, only three sales and in our opinion are totally insufficient to establish the alleged custom.
6. As to the oral evidence the defendant produced only five witnesses. Of these one deposed against him. Four others stated that the custom existed but had only so existed for 20 years. One of those four witnesses, Hemraj, also distinctly stated that the permission of the zamindar is obtained before a sale is made therein supporting the testimony of the witnesses produced by the plaintiffs.
7. The lower appellate Court has not given any analysis of this evidence but states generally that it is sufficient to prove a custom. According to the wajib-ul-arz a tenant living in a house can reside there as long as he likes without any obstruction and at the time of leaving the house he has the power to sell the materials if he built it with beams and planks purchased by himself, but if he built it with materials obtained from the zamindar then those materials were owned by the zamindar. This document is in favour of the plaintiffs and quite inconsistent with the alleged custom. The learned Subordinate Judge has minimised the value of this document by pointing out the fact that only two-thirds of the house was sold, and not the whole of it. He, therefore, held that it could not apply to the case before him. In our opinion the evidence on the record is quite inadequate to establish the custom put forward by the respondent. The decision of the Munsif on this point was, in our opinion, quite correct.
8. It is urged that as the vendor is still in possession of one-third of the house the vendee cannot be ejected from the remaining two-thirds as the tenant has not yet deserted the building. An examination of the sale-deed, however, shows that a specific two-thirds portion of the house, (towards the south) was sold to the vendee, and the vendee has been put into possession of that portion. It is clear, therefore, that the plaintiffs are entitled to possession of that two-thirds share, the defendant respondent being allowed time to remove the materials which alone were conveyed to him under the sale-deed in question. The learned Advocate for the appellants admits that the appellants are only entitled to this two-thirds share and not the whole of the house as was decreed by the Court of first instance. It may be said that as under the sale-deed the site of the house is not transferred the tenant Baldu is not liable to ejectment therefrom. But Baldu has remained satisfied with the decree of the Court of first instance which ejected him from the whole of the site and he was no party to the appeal in the lower appellate Court or in this Court. So far as the respondent in this appeal is concerned ho is not entitled to remain in possession of the two-thirds share which he has purchased and as against him the plaintiffs appellants are entitled to a decree for possession of two-thirds. We, therefore, set aside the decree of the lower Court and grant them a decree for possession of the site of the house on which stands the 2/3ds share purchased by the respondent. The latter will be allowed a period of two months from this date wherein to remove the materials of the building. The plaintiffs will get two-thirds of their costs in all Courts as against the respondent. The respondent will bear his own costs.
9. There is an objection on behalf of the respondent under Order 41 Rule 22 in respect of the order passed by the lower appellate Court in regard to costs. In view of our finding in the case this objection is dismissed with costs.