1. Second Appeals Nos. 449 and 306 of 1921 are connected. These are cross appeals by the plaintiff and defendants respectively arising out of the same suit. The plaintiff Zemindar brought a suit to recover one-fourth of the sale-proceeds together with interest, on account of a sale-deed dated the 14th of December 1916, executed by the defendants second party in favour of the defendants first party in respect of seven stops and two houses including one ruined house in the form of a chabutra or platform. The plaintiff's case was that he is the owner of the Bites of all these houses and that, under a custom which prevails in the village of Mursan where the property sold is situated, the Zemindar is entitled to claim his haq-i-chaharum. On behalf of the defendants the custom alleged by the plaintiff was denied and it was further pleaded that the inhabitants of the village of Mursan, which was alleged to be a town and not a mere agricultural village, were absolute owners of their houses and lands and had a right of sale, and it was further pleaded that the defendants had been in adverse possession of the property in suit and the plaintiff was not entitled to any relief.
2. The Court of first instance in a very careful and well-reasoned judgment decreed the claim of the plaintiff for recovery of one-fourth of the sale-proceeds together with interest at 6 per tent, per annum but dismissed the claim as regards the recovery of possession. This decree was affirmed on appeal by the learned District Judge.
3. The plaintiff in his appeal contends that the decree dismissing his claim as to the recovery of possession was not correct. It appeals that in the Court of first instance, during the pendency of the suit as well as during the course of its hearing and arguments, it was admitted on behalf of the plaintiff that the owners of houses in this village, are also the owners of their sites and that both can be transferred by them to strangers. This admission alone is sufficient to dispose of the appeal of the plaintiffs. If the defendants are owners of the sites of the houses, it is quite clear that the plaintiff is not entitled to recover possession of those sites on their Bale. Furthermore, there is a good deal of evidence on the record which goes to show that persons whose houses have fallen down have still a right left to them to transfer the sites. It did not also appear that this platform had really been abandoned by the last occupier and bad become an ordinary piece of parti or waste land. In view of all these circumstances, both the Courts below were of opinion that the plaintiff was not entitled to get a decree for actual possession of the sites. We think that this view was correct. Second Appeal No. 449 of 1921 accordingly fails.
4. The other appeal is an appeal by the defendants-vendees in which they challenge the finding of the Courts below that there is a custom under which the plaintiff was entitled to recover haq-i-chaharum. Although there are concurrent findings of both the Courts below, nevertheless it is open to the appellant to show to us that the evidence adduced by the plaintiff is legally insufficient to prove the custom relied upon by him.
5. The evidence to prove the custom appears to be fairly voluminous. On behalf of the plaintiff, in the first instance, there is an entry in the wajib-ul-arz of 1873 which clearly states that in this village the Zemindar has a right to recover one fourth of the sale-proceeds in case of sales of houses by the inhabitants and the agricultural tenants of this village. It is true that at the time when this wajib-ul-arz was prepared, there was a single Zemindar, the predecessor-in-title of the present plaintiff, and it is urged, therefore, that the recital therein was simply dictated by a single proprietor. This would merely reduce the value of the tea ib-ul-arz, but there is this additional fast that the wajib-ul arz was actually verified and attested by a number of residents and tenants and inhabitants of the village numbering 45 besides the Patwari. In addition to this, we have a judgment of the year 1884 in which a claim to enforce this right against the mortgagor was actually decreed. The plaintiff has also produced 28 tale-deeds, on 22 out of which there are actual endorsements to the effect that one-fourth of the tale-proceeds have been paid, In respect of three of them, there are entries in the plaintiff's books that haq-i-chahorum was paid. The plaintiff Las also produced his account-books from the year 1884 up to date of suit which account books have been accepted by the Courts below as genuine and which go to prove that on each and every occasion when a sale took place, the Zemindar did realize one-fourth of the sale proceeds. In addition to this documentary evidence, there are some 50 witnesses produced to depose generally as to the existence of the custom alleged by the plaintiff and the realization of haq-i-chaharum by him and his predecessor.
6. The defendants produced a number of sale-deeds, all of which were prior to the year 1884 and they relied on the circumstances that in four of them which are originals there are no endorsements of payment. As to other documents, they are merely copies. The fact that no haq-i-chaharum was paid is not proved by these deeds. The four original documents which were produced were prior to the data of 1884, and the plaintiff was not able to pro-duce account-books prior to 1884 because those account-books had been filed in an earlier suit and ware never taken back. Even the defendants' witnesses admitted that the plaintiff tried to realize his haq-i-chaharum. from each and every person liable for the same but stated that he realized haq-i-chaharum from those vendors who were willing to pay them. The evidence adduced by the plaintiff was voluminous and has been carefully considered by both the Courts below. They are agreed in finding that the plaintiff has succeeded in proving an universal and ancient right to recover haq-i-chaharum. Nothing has been shown to us in argument which would justify us in differing from the view taken by the Courts below. The case has been approached from the right point of view by the Courts below and there is no legal defeat in the reasoning adopted. We are accordingly unable to differ from the view taken by the Courts below. The result is that the finding of fait must be accepted.
7. It is, however, contended by the learned Advocate for the defendants-appellants that in any case this right cannot be enforced against the vendees, and that even if there was a custom of haq-i-chaharum, the right can only be enforced against the vendor who has been paid the full sale consideration. This point, however, is governed by authority. The rule of law was laid down clearly in the Full Bench case of Heera Ram v. Hon'ble Sir Raja Deo Narain Singh (1867) N.W.P.H.C.R. 63 (F.B.). In that case it was clearly pointed out that ' The Zemindars' customary due is payable on the transfer by sale of house property; and this equally (after the sale has become absolute) whether the sale was in its inception, conditional or not The Zemindars' right is to a share of the purchase money; it is not merely a right to claim that share from the vendor. It is, therefore, incumbent on the purchaser, if he would acquit himself of all liability, to see that the Zemindar is satisfied in raspast of his due, and he cannot discharge himself by a payment to the vendor.' The learned Judges in that case pointed out that bath the vendor and the vendee ware primarily liable to the Zemindar and the Zemindar had a claim against both, although the vendee may, if he has any such right, ultimately reimburse himself from the vendor. A different consideration might arise in the case of a right arising; out of contract between the Zemindar and occupier, but if the right is based on custom, then it has been held that it is the duty of the vendee to ses that haq-i-chaharum, is paid to the Zemindar. The vendee cannot get rid of his liability by merely proving that he has paid the whole consideration of the vendor. He ought to see that the one-fourth of the sale price actually goes to the Zemindar. if the Zemindar had not had his share, a joint decree should be passed against the vendor and the vendee leaving the matter to be decided in a subsequent suit. This has been followed in a number of case by this Court. We may only refer to the case of Dhandai Bibi v. Abdur Rahman (1867) N.W.P.H.C.R. 63 (F.B.) where it was pointed out that in the case of a customary right to receive haq-i-chaharum, where it did not appear that the Zemindar's right to share of the purchase money was limited to a right to claim it from the vendor alone, the right can be enforced against the vendee also. In the present case we have carefully read the wajib-ul-arz which records the custom relied upon by the plaintiff and we are convinced that the right to recover haq-i-chaharum. was in no way limited to a claim against the vendor alone. That being so, the joint decree passed by the Court of first instance which was affirmed on appeal by the lower Appellate Court, was correct. The result is that Appeal No. 606 of 1921 also fails.
8. We accordingly order that both Appeals Nos. 449 and 606 of 1921 be dismissed with costs including fees in this Court on the higher scale.