JUDGMENT Young, J.
1. This is a plaintiff's appeal. The suit was brought by the plaintiff, who is the sole zamindar of village Imilha, against the defendants, praying that he may eject the defendants from their houses with permission that they could remove the materials thereof.
2. It is admitted that the plaintiff is the zamindar and owner of the site of the houses in question. The defendants occupied the site of the houses and they also held fairly large agricultural holdings in the village, and in 1923, as they had failed to pay rent for some "considerable time, they were ejected in proceedings under Section 429, old Tenancy Act. The question which arises for decision in this case is whether the fact that the defendants have now ceased to be tenants of the village entitled the zamindar to eject them from the houses which they occupy.
3. The village in question is an ordinary Indian agricultural village. The ordinary position, as I understand it, in Indian villages is this, that a zamindar generally grants sites for houses in the abadi of the village to such persons as are useful to him from the point of view of the village life. The grant of sites in the abadi would generally be made to people who were carrying on agriculture. He would also grant sites to people who were useful to the village from the agricultural point of view, such as, carpenters and smiths and persons of that sort. Officials in the village would, of course, also require to have premises in which to live in the abadi, and the condition of the licence to live in the abadi would necessarily be that the tenant did carry on these particular works for which he was granted the right to live in the abadi. It has been held by a Judge of this Court, and a very experienced Judge, in the well-known case of Shohrat Singh v. Jhagru [1915] 13 A.L.J. 745, that there is a legal presumption that the occupier of any house in the abadi of an agricultural village, occupies that house as an appurtenance to his agricultural holding and that, if he abandons or is ejected from the tenancy, unless there be some special custom to the contrary, the site reverts to the zamindar, and the tenants who builds a house builds it at his own risk and has to remove the materials and vacate the site. That decision was followed in Ram Harakh v. Ambika Datt Ram [1918] 21 O.C. 257. The Judicial Commissioners in that case were Mr. Lindsay and Mr. Daniels, both of whom were Judges highly experienced in Indian village life and customs, and subsequently became Judges of this High Court. I think, therefore, that there can be no question that it has been clearly established that if there is a zamindar and a tenant of an agricultural village, who occupies a house in the abadi, there is a legal presumption that he holds the site as appurtenant to his tenancy and has no right to retain it against the wish of the landlord on ceasing to be a tenant in the village. Of course, like any other presumption, this presumption is open to rebuttal. It may be, as Knox, J., pointed out, that there is some special custom or contract, but the onus is on the defendants to establish such special contract or custom. It is for him to rebut the presumption which exists. The question in this case is have the defendants discharged the onus which was upon them? In my view, they have not.
4. It is to be noted that the learned Judge of the lower appellate Court has not noted at all the question of this presumption. Apparently his attention has not been drawn to the cases which are the authorities upon this matter. He deals, therefore, with the case in a manner rather different to that in which I have dealt with it. I think it probable that, if he had considered the question of presumption, he might have come to another conclusion. Accepting all the findings of fact, as found in the judgment of the lower appellate Court I have come to the conclusion that there is not enough to rebut the presumption. The lower appellate Court has found that the original founder of the defendant's family came to the village and settled there as a printer and dyer. I think that conclusion can hardly be drawn from the fact, as he says, that:
when Jahangir came to Imilha then he lived in his own house and that his father died in Imilha. Does it not follow from this that Jahangir's father, Turab, had his own house in the village before Jahangir came to this village and took to agriculture after the mutiny.
5. The Customs of families in this country being as they are, the mere fact that Turab died in Imilha does not show that he died in a house separate from that of Jahangir. In fact the presumption would be the other way about, But assuming that Turab originally came to the village primarily to carry on the business of printing and dyeing, it does not prove conclusively that he had not agricultural holdings as well, and in fact the learned Judge finds in his judgment that as early as 1860 a khatauni for that year shows that Jahangir, the son of Turab, was a cultivator of some lands in this village of four years standing. It is also to be noted that the village in which the business of printing and dyeing is carried on is not Imilha, but Bahadurpur and that this family is the only family which prints cloth in village Imilha. It appears tome from this that the family of the defendants came to this village in order to carry on their business, not so much in their own village, but in the village of Bahadurpur. It, therefore, seems to me that the zamindar would not be likely to grant a site in the abadi to the defendants' ancestors, unless they did some service either for himself or the village by cultivating land or by printing and dyeing cloth for the zamindar and his family, It is not enough for the defendants to say that they originally were printers. They ought, in my view, to go a step further and show the terms upon which they were admitted to the village abadi, because even if they were admitted on terms other than those of being cultivators of agricultural land, if those terms were not carried out by them, they could still be ejected from the land. Apparently at the moment they are performing no service for the zamindar, neither are they paying him any rent. In my view the original contract must have provided either for rent or service. The onus of establishing such a contract is upon the defendants. If they have not established a contract, then they have not rebutted the presumption. The mere fact that they are not paying any rent now or performing any service for the zamindar would raise a presumption that, whatever were the terms of the original contract, they are not now carrying them out, and that in itself would give the zamindar the right to eject them. On the whole I am satisfied that the decree of the two lower Courts cannot stand. The appeal is allowed with costs and there will be a decree in favour of the plaintiff for the ejectment of the defendants from their houses, permission being granted to them to remove the materials of the houses within three months.
6. As this matter is a somewhat difficult and novel one and is of great importance, I allow the defendants to proceed by way of Letters Patent appeal.