JUDGMENT Yorke, J.
1. This is a second appeal in a suit for possession of materials of an ahata. The plaintiff alleged that he was the owner as zamindar of the ahata in question and that one Mohar Singh son of Prom Sukh had been residing in it as a raiyat, that on 30th March 1939 Mohar Singh made a gift to defendant 1 both of the materials of the ahata and of the right of residence without any right and without any consent of the plaintiff, and it was said that the plaintiff was entitled to recover proprietary possession over the materials and it was said that defendant 1 was in possession over these as a trespasser. The defence put forward was that Mohar Singh was a zamindar in the village and was in possession over the ahata not as a raiyat but as a zamindar. The ownership of the plaintiff was therefore denied and it was said that the ahata belonged originally to Prem Sukh whose heirs were Mohar Singh and defendant 1 who had been all along in possession and that defendant 1 was the heir of Mohar Singh and therefore was also entitled to possession of the ahata. Lastly the plea of limitation was raised, which has not been argued before me.
2. The learned Munsif who tried the suit was of opinion that Mohar Singh and Prem Sukh, his father before him, were in possession of the Ahata in suit as zamindars. He disbelieved the plaintiff's story of having given permission to Mohar Singh to build an ahata and he further disbelieved the evidence of abandonment by Mohar Singh and upon these findings he dismissed the suit holding that in any case Mohar Singh being the absolute owner had a right to gift away the property to his son. In appeal the learned Civil Judge has come to a number of findings which are findings of fact and cannot be contested in second appeal. While admitting that Mohar Singh was a zamindar in the year 1316F., he has come to the conclusion on the evidence that the plaintiff was the original zamindar of the land in dispute and still is and that the possession of Mohar Singh at the time of a partition in 1923 was possession as a ryat. He has further held that in 1939, Mohar Singh gifted this property to defendant 1 (Baburam) who was his brother's son's son and who would incidentally be his heir under the Hindu law. He appears to have taken the view that the mere transfer would have been an act of abandonment. But he further re-inforced this view by remarking:
It is an admitted fact that Mohar Singh had gone away to Bitole and abandoned the Ahata in question. He, therefore, made a gift of the property to defendant 1 without any right.
3. It seems to me that the effect of these findings is that there are findings of fact that the plaintiff is the zamindar of the land in suit, and that the defendant's predecessor Mohar Singh was in possession as a ryat subject to the conditions in regard to tenant's houses embodied in the wajib-ul-arz. It is further found that during the period of his occupation as a tenant Mohar Singh transferred this ahata by gift to the defendant appellant and a question at once arose whether this transfer by itself would be sufficient to deprive the transferor Mohar Singh of his right of residence or whether it was necessary that these should have been proved to have been an actual abandonment. So far as the effect of the execution of the deed of gift is concerned, I cannot do better than quote some passages of the judgment of Allsop J. in Second Appeal No. 697 of 1933 which went before a Bench in Letters patent Appeal No. 54 of 1935, decided on 14th February 1936. The learned Judge remarked:
It has been presumed in the arguments before me that the mere execution of the deed of gift was sufficient to destroy the donor's right of residence. It does not seem to me that there is any justification for a presumption of this kind. It is true that a tenant in an agricultural village in the absence of a custom to the contrary cannot transfer his house as it stands with the right of residing in it; but it is quite a different thing to say that although he cannot transfer his right that right is destroyed the moment he attempts to transfer it. In the present case it may well be that the deed of gift does not confer any title on the two donees; but it is quite a different thing to say that the mere execution of it destroys She right of the donor and transfers that right to the zamindar by way of escheat. In order that the zamindar may succeed in a case of this kind, it seems to me that he must show not only that the transferees have no right to the houses but also that the so-called transferor has no right either. If the deed is inoperative as a gift the title would not pass to the donees, but if it did not pass, it would ordinarily still vest in the donor. Where a tenant is in occupation of a house in an agricultural village the custom of the country is such that it may be presumed that he is in possession tinder a grant from the zamindars by which he is entitled to retain possession of his house so long as he keeps it in repair and continues to live in it but cannot transfer it and by which if he abandons the house and leaves the village, the site will revert to the zamindar. If a zamindar brings a suit for possession against a tenant and his transferees it is sufficient for him as against the transferees to show that they have no title, but as against the tenant himself it is necessary for him to show something more than that the tenant pur-ported to execute the deed of transfer. He must show that the tenant in some way as against the zamindar has lost his right of residence and occupation.
4. He went on to remark that in the particular case it had not been established or pleaded that the tenant had in fact abandoned the village and given up her connexion with it or with the house. In the present case the peculiar situation has arisen that the learned Munsif came to a finding of fact that it was not proved to his satisfaction that Mohar Singh went to village Bitole and abandoned the ahata in question. On the other hand, in the lower appellate Court the learned Civil Judge after some rather inconclusive remarks about the evidence remarked, "it is an admitted fact that Mohar Singh had gone away to Bitole and abandoned the ahata in question." Learned Counsel for the appellant says that there is no admission on the record and the way in which the statement is made in the judgment does not suggest an admission on the part of the counsel in the lower appellate Court. Learned Counsel for the respondents has not been able to find in the evidence any such admission. In these circumstances, it seems to me that prima facie the learned Civil Judge has based his findings on the question of abandonment on evidence which is not upon the record. There is, however, evidence upon the record upon a consideration of which it will be possible to come to a finding on that question; and I think that the only proper method of disposing of this appeal, in these circumstances, is to remit an issue to the lower appellate Court. I accordingly remit the following issue for decision : Did Mohar Singh either at the time of the deed of gift of 30th March 1939 or after the execution of the deed of gift abandon the ahata in suit? No additional evidence will be admitted and the lower appellate Court will return its findings to this Court within three months. The usual time for objection is allowed.
[After the return of the finding his Lordship delivered the following judgment.]
5. Upon the issue remitted under my judgment of 9th April 1942 the learned first Civil Judge of Saharanpur has now returned a finding that Mohar Singh never abandoned the ahata in dispute either at the time of the execution of the deed of gift dated 30th March 1939 or after the execution of the deed of gift. The position which results is, (1) that by mere execution of the deed of gift dated 30th March 1939 no forfeiture was incurred and (2) that there has been no forfeiture incurred by an abandonment of the house on the part of Mohar Singh. The appellant, Baburam, is admittedly the heir of Mohar Singh and is in possession of the house in question not by virtue of the ineffective transfer which was sought to be made by means of the deed of gift but as the heir of Mohar Singh and it follows that the plaintiff is not entitled to recover possession of the house from him.
6. No objections have been filed on behalf of the respondent questioning the above finding of fact but Mr. Mushtaq Ahmad on behalf of the respondent has again sought to argue that there has been a forfeiture. In the light of the decision of Allsop J. referred to earlier and maintained by the Letters Patent Bench, that position cannot be maintained. It follows that this appeal must necessarily succeed and the plaintiff's suit be dismissed. Mr. Mushtaq Ahmad has sought to contend that the defendant appellant should not be allowed his costs of the suit in any Court because he raised a defence of ownership which has been discredited by the Court below, a finding which could not be challenged in second appeal. It seems to me that that is not a sufficient ground. The plaintiff's case fails because the plaintiff has no right to eject the defendant and the defendant is, therefore, entitled to his costs of all three Courts. As the judgment of Allsop J. in Second Appeal NO. 697 of 1933 has not been reported and seems to me to be of importance, this judgment which reproduces the important portions of that judgment may be reported.