JUDGMENT Dalal, J.
1. The plaintiff is zamindar of the village. As it pleases a plaintiff better to come on wrong allegations than to come on right ones he made out a wrong case for the ejectment of Baru Mal and Kashmiri Das from a shop situated in a hamlet of which he is zamindar. His allegation was that he had let Baru Mal into possession of the shop and subsequently Baru Mal denied his, title and took a lease for 99 years from kashmiri Das. On this ground he sued for ejectment. The truth was that kashmiri Das was occupant of the shop and had leased the shop to Baru Mal. Kasmiri Das obtained the shop in 1915 as successor in interest of one Parbhu Lal who had obtained the shop on partition in 1904. putting aside the false allegation of the plaint the questions which arise are:
(1) Whether Kashmiri Das had obtained proprietary title to the site of the shop by adverse possession; and (2) Whether there was a custom of transfer in this particular hamlet of the right of residence.
2. It is not contended that Kashmiri Das was the owner of the site by purchase. As to adverse possession, the Full Bench case was quoted of Incha Ram Bande Ali Khan [1911] 33 All. 757. Chamier, J. in his judgment pointed out that the circumstances of that case were peculiar. His observations were (p. 765) There can be no doubt that in the case of a suit by a zamindar for possession of land in an abadi which has been occupied by an agricultural tenant or by a person belonging to the village community such as the village lohar, the barbar and the like, the zamindar is entitled to rely on the presumption, the strength of which varies with the circumstances of the case, that such person held possession by leave or license of the zamindar. This presumption may, perhaps, be made in other cases also. Where such a presumption can be made, the burden of proving adverse possession lies on the defendant, and even when the presumption cannot be made, very little evidence 'is required in some cases of the kind to shift the burden of proof on to the defendant.
3. The place where the shop is situated is not even a village. It is a hamlet. It was pointed out that the respondents are mahajans, and, therefore, not ryots. I disagree with that opinion. A mahajan is as much necessary to village economy as a lohar or a barber. For the purchase and sale of grain and for the advance of money at the right time to agriculturists he is a village necessity. In his case also the presumption would be that he was in possession of the site of a shop by leave and license of the zamindar. Inquiry was made what proof there was of the payment of rent. No ground rent is recovered in a village where it is as much to the interest of the zamindar as of the ryot that the ryots of different classes should occupy houses in the village. If any further proof of possession were needed, this plot No. 105, was specifically allotted to the plaintiff on partition between the zamindars in 1904 and 1912. This is clear evidence that the zamindars considered the site to belong to them. Under the circumstances it was necessary for the defendant to point to any overt act which started adverse possession and limitation against the plaintiff-za-mindar. The shop has been allotted on partition to different members of a family. That would mean the superstructure and the right of residence and not the site which admittedly was never purchased by the family. I hold that the plaintiff had a subsisting right in the site of the shop when the suit was in situted.
4. The other defence is clearly untenable. No custom is proved of the right of a license-holder to transfer the right of residence and occupation. No sale deed was produced and the transfer under consideration by a lease for 99 years practically amounted to a sale. Out of the 18 kabuliats produced eight were for one year, four for three years, five for two years and one for seven. As to the one for ten years of 17th December 1915, it is the one by Parbhu Das in favour of another person in respect of another shop and, was executed within twelve years of he institution of the suit. In my opinion the trial Court has effectively summed up the evidence on the subject of custom:
Not a single sale deed has been produced in support of the alleged custom. The defendants have produced several kabuliats to show that residents of this village can lease their houses and shops, and they have been doing so, but many of these kabuliyats are not for more than one year, and they are without pattas, and, consequently, cannot be considered to be transfers within the meaning of the Transfer of Property Act.
5. The learned Judge of the lower appellate Court does not discuss the evidence in detail or with care. I hold that no custom prevails in this hamlet of the transfer of the right of residence by ryots.
6. I set aside the decrees of both the subordinate Courts and decree the plaintiff's suit with costs of all the Courts.