Faiyaz Ali v. Rekab Das

Rafiq, J.:— It appears that Saiyid Faiyaz Ali is the zamindar of the village of Tissa in which one Badlu 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 burn executed two sale deeds in favour of Rekhab 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 Rakhab 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 the 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 the Court of the Munsif of Muzaffarnagar for the recovery of possession of the site of the house, together with damages, on the allegation that soon after the execution of the second sale deed in his favour the zemindar Saiyid Faiyas 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 resisted on the ground, among others, that Mango had left the house in question which had fallen down and the site had escheated do the zemindar; that the latter had entered into possession peacefully, and that the allegation as regards forcible dispossession of the plaintiff was wrong. Under the common law of the land the zemindar was entitled to recover possession of the site. 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 witch right of residence. Both parties gave evidence in the case but, strange to say, none of them filed a copy of the wajib-ul-arz. The Court of First Instance after considering the evidence for both sides came 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 zemindar. It also found that the zemindar 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. 100. The zemindar has come up in second appeal to this Court. He contends that on the findings arrived at by the Lower Appellate 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.”

2. It is contended that if the learned Subordinate Judge had no doubt that Mango had made over the house to the defendant, in other words, that the Zemindar had entered into possession peaceably, the case of the plaintiff, as stated in the plaint and the pleadings, is obviously false and must fall through. We think that the word “defendant” in the judgment of the lower appellate Court is a mare slip of the pan.

3. The preceding sentences show that conclusively. The proceeding sentences are as follows: “In the present case the plaintiff has not left the house hut has been turned out of it. I 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.

4. The other portion of the judgment which is attacked relates 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 also five sale certificates from 1882 to 1909. The learned Subordinate Judge says about these documents that the plaintiff has not shown whether the said transfers were by or to the zemindars, or with 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 sale certificates 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 ryot can 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 on the 17th of May, 1897, which distinctly raised the issue of custom now under consideration. We think that it was for the defendant zemindar to explain away the 23 sale-deeds and the 5 sale certificates. They showed on the face of them that there had been transfers of the houses of the ryots in the village. It was for the defendant zemindar to show under what circumstances those transfers were made and that they were such as in no way proved the custom now set 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 judgment taken with the other evidence in the case 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 had custom inasmuch 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. The last argument or 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.

5. Appeal dismissed.