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Saiyid Faiyaz Ali Vs. Rekhab Das and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All46; 61Ind.Cas.24
AppellantSaiyid Faiyaz Ali
RespondentRekhab Das and ors.
Excerpt:
custom - ryots of tissa, tahsil muzffarnagar, district meerut--transfer of house which right of residence--custom, whether bad. - - that is a judgment between the ancestors of the parties in a case decided en the 17th of may 1897 which distinctly raised the issue of custom now under consideration. the next contention for the defendant appellant is that the custom advanced on behalf of the plaintiff is a bad custom, in as much as it derogates from the common law of the land......law, musammat mango, by a registered deed in the year 1883. mango in her turn executed two sale-deeds in favour of rakhab das in 1911 and 1916 in respect of the said house. the two deeds refer to different portions of the house and the two deeds taken together dispose of the entire house to rekhab das the house of rekhab das adjoins the house that he has purchased from musammat mango. after his purchase he opened doors leading into the new house and in fact incorporated i he new house into the old house, rekhab das brought the suit out of which this appeal has arisen on the 4th of december 1916 in to court of the munsif of muzaffarnagar for the recovery of possession of the site of the house together with damages, on the allegation that, boon after the execution of the second.....
Judgment:

1. It appears that Saiyid Faiyaz Ali is the Zamindar of the village of Tissa in which one Dadlu lives as a ryot in one of the houses in the abadi, Badlu made a gift of the house in favour of his daughter-in law, Musammat Mango, by a registered deed in the year 1883. Mango in her turn executed two sale-deeds in favour of Rakhab Das in 1911 and 1916 in respect of the said house. The two deeds refer to different portions of the house and the two deeds taken together dispose of the entire house to Rekhab Das The house of Rekhab Das adjoins the house that he has purchased from Musammat Mango. After his purchase he opened doors leading into the new house and in fact incorporated I he new house into the old house, Rekhab Das brought the suit out of which this appeal has arisen on the 4th of December 1916 in to Court of the Munsif of Muzaffarnagar for the recovery of possession of the site of the house together with damages, on the allegation that, Boon after the execution of the second sale deed in his favour, the Zamindar Saiyid Fdiyaz Ali pulled down the house which the plaintiff had purchased from Mango removed the materials of the house and built up a wall. The claim was remised on the ground, among others, that Mango had left the house in question which had fallen down and the site had escheated to the Zamidar; that the latter hd entered into possession peacefully, and that the allegation as regards forcible dispossession of the plaintiff wag wrong. Under the common law of the land the Zamindar was entitled to recover possession of the piece. The house had been abandoned and had fallen into ruins. During the pleadings it was urged on behalf of the plaintiff that, under a custom obtaining in the village, a ryot could transfer his house with right of residence. Both parties gave evidence in the case, but strange to say that none of them filed a copy of the wijih-ul-arz. The Court of first instance after considering the evidence for both sides earns to the conclusion that a ryot of the village of Tissa could transfer his house with the right of residence without let or hindrance from the Zsmindir. It also found that the Zamindar had forcibly dispossessed the plaintiff and that the latter had incurred damages to the extent of Rs. 234. On appeal, the learned Subordinate Judge modified the decree of the first Court by holding that the plaintiff by his sale-deeds only acquired the right of residence and had acquired no proprietary right in the site. The amount of damages was also reduced to Rs. 103. The Zamidar has coma up in second appeal to this Court. He contends on the finding arrived at by the lover Applicant Court the claim of the plaintiff should have been dismissed. One of the sentences relied upon by the appellant from the judgment of the lower Appellate Court is as follows: I have no doubt that Mango made over the house to the defendant.' It is contended that if the learned Sub ordinate Judge had no doubt that Mango had made over the honsa to *he defendant, in other words, that the Zamidar had entered into possession peaceably, the case of the plaintiff, as stated in the plaint and the pleadings, is obviously false and mutt fall through. We think that the word 'defendant' in the judgment of the lower Appellate Court is a mere slip of the pen. The preceding sentences show that conclusively. The preceding sentences are as follows: 'in the present case the plaintiff has not left the house but has been turned out of it. It accept the evidence on the point. I have no doubt that Mango made over the house to the defendant.' The word defendant', obviously, is a slip of the pen otherwise the meaning of the three sentences would be quite unintelligible. The other portion of the judgment which to attacked relate to the transfers evidenced by certain deeds and other documents. It appears that for the plaintiff '23 sale deeds ranging from 1867 to 1912 were filed as aha sale certificates from 1882 to 190A The learned Subordinate Judge says about these documents that the plaintiff has not shown whether the said transfers were by or to the Zamindars or by or against the consent of the Zemindars. It is contended that, on the view taken by the learned Subordinate Judge of the said sale-deeds and certificate, they should not be considered to have any evidential value in the case. Therefore, the finding of the learned Subordinate Judge that there is a custom in the village of Tissa under which a tenant or a riot san transfer his right of residence in the house is unsupported by any evidence on the record, or at least there is no sufficient evidence in support of it. We think that, in addition to the sale deeds and sale-certificates, there is another piece of evidence which is very important. That is a judgment between the ancestors of the parties in a case decided en the 17th of May 1897 which distinctly raised the issue of custom now under consideration. We think that it was for the defendant Zamindar to explain away the 23 sale-deeds and the 5 sale-certificates. They showed, on the fate of them, that there had been transfers of the houses of the ryots in the village. It was for the defendant Zamindar to show under what circumstances those transfers were made and that they were such as to in no way prove the custom now get up. The sale-deeds and the sale-certificates in question have some evidential value, in support of the case for the plaintiff. By far the most important evidence is really the judgment of the 17th of May 1897. We think that that judgment, taken with the other evidence in the aasp, is sufficient and proves the custom set up on behalf of the plaintiff. The next contention for the defendant appellant is that the custom advanced on behalf of the plaintiff is a bad custom, in as much as it derogates from the common law of the land. In support of this argument certain observations from some of the learned Judges of this Court in other cases have been referred to No direct authority has been cited in support of the view that a custom of the nature that is set up in this case on behalf of the plaintiff is such as should not be recognised by law and should not be given effect to The last argument for the appellant is that, as the findings of the lower Appellate Court are not quite clear especially with regard to the possession of the house in suit, a fresh issue ought to be framed and remanded for trial. We have given the argument due consideration and we feel ourselves unable to accept it. We think that the judgment of the lower Court on the point of possession is sufficiently clear and definite. The appeal, therefore, fails and is dismissed with costs. As to the cross-objections, there is no force in them and we dismiss them with costs, The costs in this Court will include fees on the higher scale.


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