JUDGMENT Niamatullah, J.
1. This second appeal arises out of a suit brought by the plaintiff-respondents for ejectment of the defendant-appellant from a house situate in mohalla Balapir in the city of Kanauj, within the municipal limits, on the allegation that it had been built over 25 years ago by one Murtaza Khan with the leave and license of the plaintiff-respondents who own all lands lying within the ambit of the aforesaid mohalla Murtaza Khan sold the house in question to the defendant-appellant by a deed, dated 30th September 1923. The plaintiff-respondents thereupon intimated to the defendant-appellant that the license had been revoked and that they (the plaintiffs) desired to take actual possession of the site in suit, which was eventually instituted against the appellant as the sole defendant and out of which the present appeal arises. The plaintiff-respondents claimed the relief of actual possession subject to the defendant's right to remove the materials of the house if they so desired.
2. In defence it was pleaded that the plaintiffs were not the owner of the site, that by custom obtaining in the city, of Kanauj every occupier is the owner of his house with its site and that transfers have been all along made in respect thereof, the city of Kanauj not being an agricultural village in which zamindars have the right of interference.
3. I have mentioned, with some precision the defendant's plea, which refers to custom, as I find that the lower appellate Court has overlooked it and held:
that the suit is not barred by time and adverse possession and as the appellants are owners of the site on which the house in dispute stands they are entitled to take back their land and of course the respondent is entitled to take materials of the house and he requires time for doing so and, therefore, I give him two months' time for removing the materials.
4. I do not think the finding that the plaintiffs are the owners of the site is decisive of the case as the lower appellate Court has assumed. Unless it can be found that the transfer of his house by a riyaya in mohalla Balapir in the city of Kanauj is invalid entitling the owner of the site to re-enter on the site belonging to him, the plaintiffs cannot recover possession of the house in dispute. The Court of first instance did not frame a specific issue upon this question, but evidence bearing on this question was adduced. The learned Munsif appears to have been inclined to uphold the defendant's plea but unfortunately mixed it up with the question of limitation and adverse possession. He says:
Farther more the land in question having residential house is located in a mohalla forming part of the city of Kanauj and located within the four corners of the municipal area of the said city. The plaintiffs' own witness Babu Lalta Prasad states that he is a mortgagee of the mohalla on behalf of the plaintiffs yet admits that he has recently purchased a house along with its site. It is further admitted and proved that certain transfers of the houses with sites have taken place here. These being the facts I am clearly of opinion that Article 142 and not Article 141 applies to the present case.
5. On the findings arrived at by the lower appellate Court if; must be conceded that the plaintiff-respondents are the owners of the land on which the house in dispute stands and that Murtaza Khan from whom the defendant-appellant derives his title was no more than a riyaya. As already stated the owner of the land is not necessarily entitled to actual possession of the land on the licensee or the riyaya making a transfer of his house with such right of occupation as he himself has in the site. On this aspect of the case being put to the learned advocate for the respondents, I was referred to Section 56, Easement Act, which runs thus:
Unless a different intention is expressed or necessarily implied, license to attend a place of public entertainment may be transferred by the licensee; but save as aforesaid, a license cannot be transferred by the licensee or exercised by his servants or agents.
6. It is contended that a license is declared to be non-transferable in explicit terms and that in so far as a riyaya is no more than a licensee, having the landowner's permission to build and to occupy he cannot transfer the house so as to entitle the transferee to occupy the same. It should be observed that an important reservation is made by the words "save as aforesaid" which refer to the opening words of the section, viz, unless a different intention is expressed or necessarily implied.
7. Such an intention may be gathered from the terms of the grant, be inferred from surrounding circumstances, or be found as an incident of local usage. It may be implied in the particular right permitted by the licensee. The section taken apart from the saving clause, forbids not only transfers but also the enjoyment of the license by servants and relations of the licensee. It cannot be contended, with any show of reason, that a riyaya cannot allow the members of his family, his guests and servants to occupy the house. The extent to which a license can be allowed by the licensee to be enjoyed by persons other than himself may easily appear from surrounding circumstances: see, for example, 111 (b) appended to Section 56, Easement Act. As regards the license to build and occupy a house it has never been laid down as a general rule that a riyaya cannot transfer it. After the riyaya or licensee has constructed work of a permanent character acting on the faith of the license, the land owner, cannot revoke it: see S.'60, Easements Act. If the riyaya, in a given case has no right to transfer his residential house, it may well be maintained on behalf of the owner of the site, that the transferee acquires no right to possession of his land against his wishes and may be ejected. Having regard to conditions prevailing in agricultural areas it is to be presumed till the contrary is proved that the right of transfer is not an incident implied in the license under which riyayas occupy the sites of their houses. In urban areas, however, the presumption is otherwise. It has been held in at least two cases decided by Benches of this Court that occupiers of houses in cities and towns should be presumed to possess a right to transfer them unless contrary is shown: see Jamna Kuer v. Abdul Nabi [1912] 16 I.C. 353 and Govind Prasad v. Kundan A.I.R. 1924 All. 112. They do not refer to Section 56, Easement Act, but the underlying principle is reconcilable with that section only on the hypothesis that a right of transfer is implied in the circumstances attending the grant of the license for building 'purposes in a city or town where houses for substantial value may be erected by riyayas or licensees.
8. The plaintiff-respondents have not pleaded that there was any restriction in the grant to Murtaza Khan as regards his right to transfer the house, or that there was any local usage prohibiting transfers by his riyayas of their houses in mohalla Balapir. They relied merely on "law and Justice" which according to them, make the transfer "quite null and void." This being so, they cannot succeed in their action for ejectment against the defendant on mere proof of their titles as owner of the site.
9. The defendant-appellant has challenged the finding of the lower appellate Court on the question of plaintiffs' ownership of the site. It has been arrived at on a consideration of oral and documentary evidence bearing on the question and is purely one of fact. It cannot, therefore, be allowed to be impugned on second appeal and must be upheld. The plaintiffs' right to the site of the house in dispute is, therefore, established. The defendant's plea of adverse possession has no force. He never asserted a right of ownership in the site before the present litigation and in the face of the plaintiffs' evidence, believed by the lower appellate Court, that Murtaza Khan entered on the land as a riyaya no question of limitation can arise.
10. On the record as it stands, the suit of the plaintiff-respondents for ejectment of the defendant-appellant cannot succeed in the absence of allegation and proof that occupiers of houses generally in mohalla Balapir, city Kanauj, cannot transfer their houses and with them the right of occupation of the site under any local custom or that under the terms of the particular grant or license under which Murtaza Khan built the house in dispute he had no right to transfer his house. I have taken time to consider the question whether an issue should be remitted to the lower appellate Court for a finding on the question whether such custom or restriction exists. In view of the plaintiffs' case as put in the plaint which relies solely on their right as owners in support of their claim to recover possession of the site I think no issue arises. It is true the defendant did refer to such a custom in his written statement and adduced some evidence in support thereof. It was only incidentally that the defendant-appellant, made a mention of such a custom, It was necessary for him to do so. I must accept the rule of law laid down by this Court in the cases to which reference has already been made, that in case of riyayas occupying houses in cities and towns, it is to be presumed that they have a right of transfer unlike those who inhabit agricultural areas. In that view the plaintiffs should have alleged and proved not only their ownership but also the existence of custom or terms of the grant under which the house in dispute was built which make the transfer thereof invalid, entitling them to recover possession of the site. The case has already been fought out in three Courts and I do not think the plaintiffs are entitled to raise that essential question now and to have the case remanded for determination of it. Under these circumstances, the plaintiffs' suit for actual possession must fail.
11. Murtaza Khan sold the house to the defendant as if he were the owner of the site. The latter has throughout disputed the title of the plaintiffs. It is not, therefore, just and proper to withhold all relief from the plaintiffs. As was done in one of the two cases quoted by me above the plaintiffs ought to be awarded a declaratory relief as regards their ownership of the site, though their claim for ejectment of the defendant from the house in dispute may be dismissed. It is, therefore, declared that the plaintiff-respondents are the owners of the site of the house in dispute and that the defendant-appellant like Murtaza Khan is only a riyaya entitled to occupy the house as such. The plaintiffs' claim to eject the defendant is dismissed. The decrees passed by the Courts below shall be discharged and a decree in terms of this judgment shall be substituted therefor.
12. Under the circumstances of the case parties shall bear their own costs throughout.