JUDGMENT
1. The Question in this appeal is whether or not a custom said to prevail in the village of Walidpur in the district of Azamgarh has been proved whereby a tenant occupying a house in the abadi of the village is empowered to dispose of it to a stranger, without the consent of the landlord, not merely the material of the house but also the right to reside in it so long as the house is standing.
2. The plaintiffs, who are the zamindars, upon the sale by their tenant of the house in question instituted the suit out of which this appeal has arisen for recovery of the site of the house and also for one-fourth of the materials of the house, or the value of one-fourth of such materials. They claimed to be entitled of the materials under a provision in the wajib-ul-urz of the village which runs as follows: "A ryot who sells a house pays one-fourth of the sale consideration to the zamindar, and the latter, if he desires to do so, takes' one-fourth of the materials of the house." The defendant in his defence did not deny that he was a ryot in the village. The case he set up was that he was tenant not of the plaintiffs but of one Mubark Ali and that the sale was made with his consent. He also set up an alleged custom whereby a tenant has a right to sell his house including its site.
3. The Court of first instance gave a decree to the plaintiffs for one-fourth of the value of the materials of the house but in other respects dismissed the suit.
4. Upon appeal this decision was reversed and the plaintiffs' suit dismissed in its entirely. In second appeal the learned Judge of this Court upheld the decision of the lower appellate Court.
5. The evidence in support of alleged custom is most unsatisfactory. Several sale-deeds of houses in the village were put in evidence in support of it, but there is nothing to show under what circumstances these sale-deeds were executed. We think that the evidence in support of the custom is entirely insufficient to establish the custom, and that the case is governed by the ruling of a Full Bench of this Court in Ram Bilas v. Lal Bahadur 30 A. 311 : A.W.N. (1908) 112 : 5 A.L.J. 456 4 M.T.L. 169. There is a tendency in this province to set up in villages, customs which are subversive of the rights of property, as for example, in the present case a custom which in fact takes from the zemindar the right to the site of a tenant's holding on the determination of the tenancy. The claim of a tenant to transfer a right of residence really amounts to this, for it means that a tenant may by assignment transfer to a stranger right of residence without the consent of the zemindar, and so force upon the latter a tenant who may be distasteful to him. It prevents the landlord from resuming the occupation of his land when a tenant, selected and approved of by him, chooses to give it up. It is the change of a right of tenancy into a right of permanent occupancy.
6. In the case of Chajju Singh v. Kanhia A.W.N. (1881) 114, a Full Bench held that the zemindars of a village are, as a rule, and presumably, the owners of all the house sites in the village and that a house left unoccupied by a tenant lapses to the landlord in the absence of heirs or of other lawful assignees of the last occupier. The "other lawful assignees" are not to be understood to mean purchasers by private or auction sale from such occupier.
7. In Sri Girdhariji Maharaj v. Chote Lal 20 A. 248 Edge, C.J., and Burkitt, J., overruling a decision of Aikman, J., held that according to the general custom prevalent in these provinces an agriculturist, or agricultural tenant, who is allowed by a zemindar to build a house for his occupation in the abadi obtains, if there is no special contract to the contrary, a mere right to use that house, for himself and his family* so long as he maintains the house, that is prevents it from falling down and so long as he does not abandon the house and leave the village, that in the absence of a special grant from the zemindar, he has no interest which he can sell by private sale; or which can be sold in execution of a decree against him except his interest in the timber, roofing and wood-work of the house. In the course of the judgment it is observed: "In our opinion the plaintiff had only to rely on the common custom of the provinces, and it was for the auction-purchaser, who alone defended this suit, to show that there was some special contract between the zemindar and the person or the predecessor of the person whose interest he had bought which created, contrary to the general custom, an interest which might be attached and sold in execution of a decree against the occupier." The learned Judges doubted whether if the defendant auction-purchaser had set up not a special contract but a local custom of the village, by which an occupier of a house in the abadi, holding under no special contract but merely occupying a house the site of which belonged to the zemindar, could sell his right to occupy or have it sold for him in execution of a decree against him, such a custom would be valid. As to this we express no opinion.
8. In Raj Narain Mitter v. Budh Sen 21 A. 338 in which Knox, J., and Aikman, J., differed, the defendant did not claim to have acquired any proprietary title in the site of the house which was claimed by the plaintiff and did not dispute the plaintiff's right to recover ground rent for the site. We cite this case for the purpose of quoting the observations of Knox, J., upon the relations zemindar and ryot and particularly the extract which he gives from the land systems of British India by B.H. Baden-Powell, an officer who had great experience in the matter of the rights of landholders in these provinces over homestead land in a village. Knox. J. in that case held that the principal defendants had no right to sell "anything more than the materials of their house, and that no title to the site passed to the purchasers. Aikman, J., was of opinion that the conduct of the plaintiff's Karinda under the circumstances of that case amounted to an acquiescence in the acts of the principal defendant and was binding on his principal, the plaintiff.
9. The case before us closely resembles that of Muhammad Vilayat Ali Khan v. Muhammad Liyaqat Ali Khan 6 Ind. Cas. 580. We may point out that the provision in the wajib-ul-arz before us, which prescribes that the zemindar upon a sale of a house may take one-fourth of the materials of the house, indicates that the materials of the house alone can be sold by a tenant unless the zemindar consents to the maintenance of the house by the occupier. This wajib-ul-arz, it may be, is not binding on the tenants who were not parties to it, but it shows what the views of the zamindars were.
10. Now clear and cogent evidence is needed to prove a custom. We fail to find such evidence here. We are of opinion that the evidence relied on by the Courts below was legally insufficient to establish the alleged custom, and we accordingly set aside the decree of this Court and of the Courts below and give a decree to the plaintiffs for possession of the site of the house when the materials of it have been removed. In other respects the decree of the Courts below and of this Court will stand. We allow a period of two months within which the materials of the house may be removed by the defendant. On the expiration of two months the plaintiffs will be entitled to possession. The appellants will be entitled to the costs of this appeal and also the costs of the appeal to the learned Judge of this Court, and other costs will be proportionate to failure and success.