1. These two appeals arise out of two suits for recovery of possession of certain lands, which constituted two occupancy holdings which had been transferred by the raiyats to the defendants. The plaintiff sought to eject the defendants on the ground that the holdings were not transferable without the cansent of the landlord.
2. The defence was that they were transferable without payment of any nazar but as the landlord was demanding nazar on transfers, the defendants were willing to pay it.
3. The Courts below have found that occupancy holdings in the disputed mahal are transferable by custom on payment of 25 per cent. of the purchase money as nazar. The Court of first instance directed the defendants to pay the nazar within a month of the date of the judgment, failing which the plaintiff was to get khas possession. That decree has been affirmed on appeal by the District Judge and the plaintiff has appealed to this Court.
4. It has been contended before us that the custom found by the Courts below, namely, that occupancy holdings are transferable by custom on payment of a nazar of 25 per cent. on the purchase money, was never set up by the defendants in the written statement, the defendants having pleaded that the Zamindar was bound to recognise the purchaser as his tenant according to the custom prevailing in the mahal without any nazar. The appellant accordingly complains that the Courts below ought not to have gone into the question of transferability on payment of nazar, which was never the case of the defendants and that in fast such a case was inconsistent with the case set up by them.
5. It is contended on behalf of the respondents that the plaintiff has not been prejudiced by the omission to take the plea in the written statement, or the omission to raise an issue on the point. The learned Pleader for the appellant, on the other hand, contends that his client has been prejudiced and that as a matter of fact he had not adduced any evidence on the point.
6. It is unnecessary, however, to discus this question, as we think that the appeal must succeed on another ground, because assuming that the custom of transferability on payment of nazar exists, it is not even suggested that the defendants ever paid or even offered to pay any nazar to the landlord. Having regard to the defence, namely, that the landlord was not entitled to any nazar and that he was bound to recognise the transferee without payment of any nazar, it is not at all likely that the defendants should have offered any nazar to the landlord, nor is it suggested that they did so.
7. It was suggested by the respondents that there was no fixed time for the payment of such nazar. But in the first place it has not been so found and, secondly, the transfer took place about 5 years before the suit; and as stated above, it is not even suggested that they offered to pay any nazar to the landlord at any time.
8. It is pointed out in the case of Mina Kumari v. Ichamoye 45 Ind. Cas. 717 : 27 C.L.J. 587 at p. 580 : 22 C.W.N. 929 that if there is a customary rate of nazar which the landlord is obliged to accept, the transferee of an occupancy holding has no title under the custom until he has paid or tendered nazar at that rate. See also Maharaja Radha Kishore Manikya Bahadur v. Sreemutty Ananda Pria 8 C.W.N. 235 and Srimutty Sibo Sundari Ghose v. Raj Mohan Guho 8 C.W.N. 214.
9. We are accordingly of opinion that the decrees of the Courts below must be set aside and the suit of the plaintiff decreed. The result is that the plaintiff will got khas possession of the land. If the defendants have deposited the nazar, they will be entitled to get back the amount.
10. Each party to bear his own costs in all Courts.