1. The appellants and the respondents other than Abdul Nabi are the owners, i.e., ground landlords of kasba Kanth, which is a small town of about 8,000 inhabitants in the Moradabad District. Pir Bakhsh, a teli, was the occupier of four small houses in the town. He died and was succeeded by his son, Ajru, who, on December 26th, 1903, sold the houses including the sites to the respondent Abdul Nabi. The appellants brought this suit in April 1910 alleging that Ajru had left the kasba in 1907 and that they had thereupon entered into possession of the land and houses but had been dispossessed by Abdul Nabi early in April 1910 and they prayed for a decree for possession jointly with the respondents other than Abdul Nabi. Abdul Nabi pleaded that he was the owner of the land in question under his purchase from Ajru and had been in possession since December 1908. He denied that he or his predecessors had ever paid rent to the ground landlords of Kanth and he pleaded that the appellants had not been in possession of the land within twelve years of the suit. Two days later, he followed this up with another written statement in which he pleaded that the occupiers of houses in kasha Kanth have all along been owners of them and have had the power to transfer them with their sites by sale, mortgage or otherwise. The Munsif found that it was not true that the appellants and others had entered into possession on the death of Ajru and had been turned out by Abdul Nabi, but he found that Pir Bakhsh and Ajru had paid one rapee per annum rent for their houses to the ground landlords, that they were not owners of the houses and had no power to transfer them with their sites even if there were occupiers of houses in Kanth who had such rights. On appeal, the District Judge held that it was proved that owners of houses in Kanth have power to transfer them with the right to occupy their sites and he found that the appellants and others had not been dispossessed by, Abdul Nabi. He held that the question' of the payment of one rupee per annum by Pir Bakhsh and Ajru was irrelevant but that ' if such a payment was proved, it was not inconsistent with the right to transfer the houses and sites.
2. In second appeal, it is contended that the payment of rent to the ground landlords being proved, Ajru could not have denied their title and Abdul Nabi was in no better position and, secondly, that the evidence adduced by Abdul Nabi was not sufficient to prove that all occupiers of houses in Kanth had the right to transfer them with the right to occupy the sites and that if there were persons having such rights in Kanth, the evidence fell short of proving that Ajru had such rights over his houses. We agree with the District Judge that the payment of one rupee per annum to the ground landlords is not necessarily inconsistent with the right to transfer the houses with the right to occupy the sites. The wajib-ul-arz of Kanth seems to recognize the liability of low caste men to pay rent though they have power to sell and mortgage their houses. The payment of a very small rent, as in the present case, serves as evidence of the ground landlords' title to the site and would enable them to assert that title if the site were abandoned by the owner of the house standing thereon, We are unable to hold that the payment of a small rent by Ajru would have prevented him from setting up a right to sell or mortgage his houses and give the transferree the right to occupy the sites. On the second point, the appellants rely upon the decisions of this Court in Muhammad Usman v. Babu 8 A.L.J. 61 : 9 Ind. Cas. 314 and Ram Bilas v. Lal Bahadur 30 A. 311 : A.W.N. (1908) 112 : 5 A.L.J. 456 : 4 M.L.T. 169. Those were cases relating to the homesteads of ordinary agricultural villages. The question was whether tenants had power to sell their houses together with the right to occupy the sites; a number of sale-deeds were produced in both cases to prove that such a right existed. In both cases, this Court held that the evidence was not sufficient to prove the right set up. In those cases, the tenants started with the presumption against them that they had no power to transfer the right to occupy sites in the tabarli. In the present case, we have to deal with an area on which a market town has stood for generations. The Gazetteer shows that the population of Kanth was about 8,000 as long ago as 1847. In such a case, it is impossible to start with the presumption that occupiers of houses have no power to transfer the right to occupy the sites on which their houses stand. Aikman, J., in the case reported as Ram Bilas v. Lal Bahadur 30 A. 311 : A.W.N. (1908) 112 : 5 A.L.J. 456 : 4 M.L.T. 169 was careful to say that his re-marks did not apply to towns. The wajib-ul-arz recognizes that persons of many classes have the right to transfer their houses with the right to occupy the sites. Soon after it was prepared, a case arose in which several occupiers of houses claimed such a right and the Settlement Officer made an alteration in the wajib-ul-arz in consequence of the Commissioner's decision in the case. A large number of instances of transfers of houses with the right to occupy the sites even by low caste men have been proved and it is shown that in several cases, houses were sold at auction with the right to occupy the sites. There are also decisions in cases in which the tenant's right to transfer was upheld. Having regard to the fact that we are dealing with a town and not with an ordinary agricultural village, we are unable to hold that the evidence is not sufficient to establish the right set' up by Abdul Nabi.
3. But Ajru sold the sites to Abdul Nabi as if he were full owner of them. He was not entitled to do that and we think that we should make a declaration of the title of the appellants and the respondents other than Abdul Nabi. We, therefore, modify the decree of the lower Appellate Court by declaring that the appellants and the respondents other than Abdul Nabi are proprietors of the sites in question. In other respects, we dismiss this appeal. We make no order as to costs in this Court.