1. This was a suit, brought by the plaintiff zemindar for possession of a house. The Court below, overruling the Trial Court, has dismissed the suit, and the plaintiff appeals. The house was occupied by a tenant who has made a gift of it to the defendant. One of the defences was that the defendant's vendor had quitted the village twenty years before and that the house escheated to the zemindar. The Court below remitted issues to the Trial Court. The findings on those issues were in favour of the appellant. No objections wore taken within the time allowed but the learned Additional Judge nevertheless went into evidence and overruled the findings of the Trial Court on the facts. There is some authority in favour of his right to do so but I am constrained to remark that if such a practice became common the procedure of allowing a time within which objections to the findings must be taken would be reduced be a useless farce.
2. However there is no need to go into this question as the judgment of the learned Additional Judge is clearly wrong on the second issue. That issue is whether the tenant had a right to sell his house together with a right of residence. Apart from special contract it is well settled that no such right exists in an agricultural village. This was laid down as far back as 1898 in Sri Girdhariji Maharaja v. Chots Lal 20 A. 248 : A.W.N. (1898) 27 : 9 Ind. Dec. (N.S.) 520, and followed in Muhammad Usman v. Babu 9 Ind. Cas. 314 : 8 A.L.J. 61. Faiyaz Aliy. Bekhab Das 61 Ind. Cas. 24 : 19 A.L.J. 104, only modifies the previous rulings to this extent that it is open to the tenant to prove a special custom allowing a right of sale. In this case the wajib-ul-arz is quoted by the Additional Judge. The custom which it records gives the tenant who is resident in the village no right to do more than sell the materials of his house. It does not recognise his right to convey his right of residence to the purchaser. The learned Judge admits the law to be as stated above but finds that it does not apply to a sale by one tenant to another tenant. There is no warrant for making any such distinction. A sale to the zemindar himself has been in some oases recognised as valid on the ground that the prohibition against a transfer is for the benefit of the zemindar and if he likes to waive the prohibition he is at liberty to do so. There is no infringement of his right. But a sale to another teftant is just as much an infringement of the zemindar's right as a sale to a person residing outside the village. The learned Judge at the conclusion of his findings mentions that there are four instances of sales by tenants. He does not say that these instances establish a custom, and clearly they could not do so. Indeed three of the four instances were, as the learned Munsif points out, transfers to the zemindar himself. The learned Munsif was, therefore, right in decreeing the suit subject to payment of the price of the materials of the house.
3. I set aside the decree of the Court below and restore the decree of the Munsif with costs in all Courts.