1. This is an appeal against the decision of the lower appellate Court reversing an order of the Court of first instance decreeing the plaintiffs' claim. The plaintiffs-appellants are zamindars of the village Mahadeo. Tirkha Ram being the zamindar of Mahal Tirkha and Ram Prasad being the zamindar of Mahal Ram Prasad. The defendant-respondent Murari Lal is the vendee of a dwelling house situate in the village of Mahadeo and the defendants-respondents Nos. 2 to 5 were the vendors of this dwelling house.
2. The claim against Murari Lal and the other defendants-respondents was for possession of this dwelling house on the ground that defendants-respondents Nos. 2 to 5 had no power to sell the house and therefore could transfer no interest in it to the defendant-respondent Murari Lal. The defence to the claim was that in this village of Mahadeo there exists a custom whereby the tenants can transfer their houses to transferees. In other words they could dispose not only of the materials composing the dwelling house but also the site as well. The defendant-respondent Murari Lal relied upon a sale deed dated 12th June 1920 executed by one Har Narain deceased, the father of defendants-respondents Nos. 2 to 5. It was his contention that by reason of this custom existing in the village, Har Narain could and did transfer to him a good title to the premises, the subject-matter of the sale, and that therefore he could not be ejected by the zamindars, the plaintiffs. It should be noted here that the house in question stood partly in mahal Tirkha and partly in mahal Ram Prasad, hence both the zamindars joined to bring this claim. A point was made in the lower Courts that such joinder of the plaintiffs was improper, but no point is taken before me and it is stated that it has been abandoned.
3. In an agricultural village the presumption is that the zamindars own the whole of the village including the sites upon which the tenants' houses have been built. The tenants are only the owners of the materials with which the houses have been constructed and apart from some special custom the sites remain the property of the zamindars. Prima facie therefore a tenant cannot transfer a dwelling house and the site upon which it is built unless of course there is some custom legally binding on the parties which gives the tenant such a right. The allegation, in this case is that in the village of Mahadeo there is such a custom, but clearly the onus of establishing that custom rests upon the tenant.
4. To establish this custom a number of sale deeds and mortgages were filed and proved by the defendants-respondents. The documents numbered 30, but out of these, 14 were actually executed within twelve years of action brought. This left 16 sale deeds and mortgages which were in fact executed at a time more than 12 years before action brought. These documents show that the tenants in this village can transfer their dwelling houses together with the sites as if they were the owners. They transfer them to other tenants and strangers as if the zamindars had no right whatsoever in them. The fact that in a village of the size of Mahadeo such a number of transfers had taken place is some evidence that a custom such as that alleged by the defendants exists. It is however contended by counsel for the appellants that no evidentiary value can be given to any transfers made within 12 years of action brought because it is open to the zamindars within such a period of 12 years to bring an action claiming possession in spite of the transfers. The lower appellate Court attached to these transfers some importance relying upon the case of Faiyaz Ali v. Rekhab Das 1921 All 46. In that case 23 sale deeds ranging from 1867 to 1912 were filed and also five sale certificates from 1882 to 1909. The appeal was heard by a Bench of this Court in 1920 and it is clear that some of the sale deeds and sale certificates were of a date within 12 years of action brought, the date of the institution of the suit being 4th December 1916. It is to be noted that in this case the Court did not consider that the transactions which had taken place within 12 years of action brought should not be taken into consideration.
5. In Ganga Prasad v. Babu Ram 1927 All. 195 a Single Judge of this Court held that the sale deeds which were executed within 12 years of action brought could not be taken into account in considering whether or not such a custom existed. This case appears to be in conflict with the Bench case previously cited, but such conflict, if any cannot affect the decision in the present case.
6. Assuming that the sale deeds and mortgages executed within 12 years of the present suit were eliminated, 16 transactions would still be left, but the evidence in support of the custom does not rest there. The mere production and proof of sale deeds, or mortgages is no proof that the. zamindars were aware of these transactions and did in fact acquiesce in them. The defendant alleging such a custom must not only establish such transactions but he must establish, positively that such took place with the knowledge and acquiescence of the zamindars.
7. There is ample evidence in this case to show that what had occurred in this village for many years had occurred with the full knowledge and acquiescence of the zamindars. In a previous suit decided by the learned Munsif who tried this suit, one of the plaintiffs zamindars, viz., Ram Prasad admitted on oath that such a custom as alleged by the present defendants-respondents did exist in this village. That being so it is difficult at least for Ram Prasad or any person claiming title through him to allege to the contrary now. However such an admission made by Ram Prasad, though not conclusive against his co-plaintiff, is certainly of considerable evidential value against him. Three other zamindars of this village were called by the defendants-respondents to establish this custom and each of them said that such a custom existed. Landlords do not as a rule make admissions of this sort against their interests unless such be true because such admissions are bound to be used against them at some later date as Ram Prasad's admission has been used against him in this present case. The lower appellate Court accepted this evidence and rightly and that being so the defendants-respondents established that these transactions, the documents concerning which had been filed and proved, had taken place with the knowledge and approval of the zamindars because according to the latter there was a custom permitting the tenants to transfer their dwelling houses together with the sites on which they are built and that the zamindars could not interfere. It appears from the judgment of the lower appellate Court that a number of other witnesses, about 16 in number, were called by the defendants-respondents who deposed to this custom. There was therefore before the lower appellate Court 16 transactions which had taken place more than 12 years before the suit was instituted, 14 similar transactions which had taken place within 12 years of the date upon which the suit was instituted and the evidence of three zamindars, the admission of Ram Prasad one of the plaintiffs in the suit and the evidence of about 16 other witnesses. Upon, that evidence the lower appellate Court, found the custom established and that being so reversed the decree of the Munsif granting the plaintiffs possession.
8. It has been urged with great force that the evidence before the lower Court was not legally sufficient to establish such a custom. Where a custom such as the present one is alleged the existence or non-existence of such a custom is a question of fact, but it is a question of law whether there is proof to support that custom or whether the evidence adduced is legally sufficient to prove such a custom : see Ram Bilas v. Lal Bahadur (1908) 30 All. 311. In that case a Full Bench of this Court held that a custom similar to the one alleged in the present case could not be, proved, upon the mere production and proof of a number of sale deeds. It is unfortunate that in the report of that case the actual number of sale, deeds produced is not given. All that is stated in the judgment of the learned Chief Justice is that instances of sales were given in evidence and a number of documents were produced in which apparently not only the fabrics of the houses but the grounds also, upon which they stood was the subject of the sale. This decision is of course binding upon me, but the case before me is clearly distinguished from this Full Bench decision. There the only evidence adduced to prove the custom was a number of sale deeds, and no evidence was tendered to show that the zamindars of the village either acquiesced or even knew of such, sales. In the present case there is abundant evidence to show that the zamindars were fully aware that such, sales were made and did not interfere, because they were aware that they had no power to interfere.
9. In my judgment each case must be decided upon the evidence actually tendered in that particular case. It may be that the production of 40 sale deeds in one case might legally afford sufficient evidence to establish a custom, whereas the production of a similar number of deeds could not in another village legally establish such a custom. The size of the village, the nature of the transactions and the fact whether the zamindar was or was not resident in the village are all factors which must be taken into account. The decision in Ram Bilas v. Lal Bahadur (1908) 30 All. 311 does show that transfer by themselves may not be sufficient evidence of the existence of a custom, but where a question of fact is at issue, each case must be decided on its own merits and the finding arrived at on the evidence adduced in one case cannot be used to guide the decision of a kindred issue in another case, not heard with it : see Tajmmul Husain v. Banwari Lal 1926 All. 43.
10. In my judgment, having regard to the documentary evidence of transfers and mortgages which had taken place at a period before 12 years of the institution of the suit, the nature and size of the village, the admission of one of the appellants and the evidence of the zamindars and other persons, I am of opinion that there was legally sufficient evidence to prove this custom and that being so the lower aplate Court was right in holding that the defendants had made out their defence to this claim. In the result this appeal is dismissed with costs. Leave to appeal under the Letters Patent is asked for but refused.