1. The question to be decided in this appeal is whether the defendants-respondents have or have not a right to sell a house in an area which has been described as Mauza Ahmadpur Niazpur or as Mohalla Ahmadpur appertaining to the town of Shahjahanpur. The suit has lasted since the year 1917 and the first decision of the learned Munsif in that year was that the area in which this house is situated is, technically speaking, an agricultural village although it has been included in the Municipal area of the town of Shahjahanpur. There is no explicit finding by any Court that this is not the case, although it appears that the lower appellate Court has taken the view that because the Municipalities Act has been extended to this mauza, the zemindar is thereby precluded from claiming those rights over the land on which the houses of the raiyats stand, which are admitted to be the universal rights of the zemindars in this province. We are not prepared to agree with this view of the learned lower Court, and we are of opinion that this is a case in which the ordinary law of this province must be held to apply unless the respondents are able to prove that they received some title in the house in suit other than that of ryots in an agricultural village. When the suit was originally brought, the defence raised was that the defendants were the owners of the houses, but the defence did not explicitly state how that right of ownership was acquired. After the suit was remanded by this Court in 1920 the defendants were allowed to raise an issue as to custom.
2. In appeal we have been asked to consider that this issue should not have been raised at so late a stage, but we are not prepared to agree with the learned Counsel for the appellants on this point. The very basis of the plaintiff's suit is a custom and it is only by establishing a counter-custom that the suit could be successfully met. The lower Court has held that the defendant has proved the existence of a custom which would permit the sale which is now in dispute. Undoubtedly the defendants have been able to adduce a number of examples of sales and mortgages by persons who appear to have been in the same or in a similar position to the vendor in the present case. It is not proved that the position of these vendors and mortgagors in the past was actually the same, and it must be pointed out that in this village there are a number of persons known as bazyaft holders who are allowed by custom to sell their houses and the sites of these houses. The learned lower appellate Court considers that this is a point much in favour of the vendor in the present case because he is himself a holder of a plot of resumed muafi, but that is not the plot in suit, and we cannot follow the lower appellate Court in holding that, because a man is the holder of muafi plot and is entitled to sell a house which he owns by virtue of that title, he is thereby entitled also to sell a house and site quite separate from the plot in which he holds the muafi rights.
3. There is one consideration also which affects the conclusion drawn by the lower appellate Court from the numerous sales and mortgages which have just been detailed, and that is that there have been several cases fought out in connexion with this very village and in more cases than one the decision has been in favour of the zemindar and the sales have been set aside. In our opinion these judicial decisions go far to rebut the evidence as to custom contained in the sale-deeds and mortgages which have been produced by the respondent.
4. Apart from the question of custom the lower appellate Court has found that there is direct proof that the ahata in which this house is situated belonged to the vendor, but the only proof which he mentions is that certain relations of the vendor mortgaged the whole ahata by conditional sale along with its site to another person in the year 1868. We are unable to see that this transaction establishes any right on the part of the present respondents to sell this house and site in defiance of the rights of the zemindar. The lower appellate Court has also laid stress on certain facts from which he argues that the plaintiffs have themselves acquiesced in similar transactions and are estopped by their own admissions from contesting respondents rights to dispose of this property. Questions of acquiescence and estoppel require very careful treatment. It is by no means certain that those persons who agreed to other transactions in the past had any intention of admitting the right of the present respondents to dispose of this property, and as to estoppel the statements referred to in the judgment of the lower appellate Court were made by one of the plaintiffs when he was not an owner or zemindar in this village and he wished to acquire certain property from a ryot.
5. In our opinion the appellant has made good his case. He has all the rights of a zemindar in the mauza in which this property is situated and is entitled to challenge this transaction and obtain a decree.
6. I entirely agree. In my opinion after thoroughly considering the mass of material which has been expended ever this case the only Court among the lower Courts which understood the real issues was the Munsif who tried it, now nearly ten years ago, and all the subsequent litigation appears to me to have been a struggle to get the case back on to the correct lines on which he originally treated it in his decision on the first issue. If it will assist the lower Court in such matters, I desire to point out that the volume of evidence necessary to negative the existence of a custom is very much less than that required to establish one.