JUDGMENT Bind Basni Prasad, J.
1. This is a defendant's appeal arising out of a suit for the possession of a house situated in village Alauddinpur which is close to the town of Kanauj in the district of Farrukhabad. The plaintiff respondent is the proprietor of 5/6 share in this village and is its lambardar. The defendant was a ryot in the village and occupied the disputed house. On or about 16 8-1936, defendant 3 sold the house to defendants 1 and 2. In June 1940, defendants 1 and 2 sold that house to defendants 4 and 5. On 8-12 1948, the plaintiff brought a suit from which this appeal arises, alleging that Alauddinpur was an agricultural village and the ryot in it had no right to transfer by sale any house. He contended that the two sales aforesaid were null and void in the eyes of law and he was entitled to the possession of the house.
2. The defence was that Alauddinpur which is situated between the towns of Kanauj on the one hand and Makrundnagar on the other is not an agricultural village and that, at any rate, there is a custom in that village according to which the ryots have full rights in their houses and that they are at liberty to sell to whomsoever they like.
3. The learned Munsif of Kanauj decided in favour of defendants and dismissed the suit. In appeal the learned Civil Judge, by an exhaustive judgment in which he has examined the evidence with care and ability and discussed the law with thoroughness, disagreed with the findings arrived at by the trial Court. He held that Alauddinpur was an agricultural village and that on a critical review of the documentary evidence adduced by the defendants the custom was not established. In the result he allowed the appeal and decreed the suit. The defendants came in appeal to this Court.
4. So far as the question of Alauddinpur being an agricultural village is concerned, the learned Civil Judge has considered it from all aspects. "What is an agricultural village? It is a village in which the majority of the residents carry on agricultural occupation and in which the bulk of the land is used for agricultural purposes. The learned Civil Judge has analysed the documentary evidence and has shown that Alauddinpur is a village in which most of the land is being used for agriculture and the main occupation of the population is agriculture or its allied industries. It may be that more than 400 years ago, as it appears from the dastur-i-dehi settlement of 1872, this village was a part of the town of Kanauj and was one of its mohallas. But there can be no denying the fact that as Kanauj lost its importance this mohalla fell into ruins in course of time and the land was gradually brought under cultivation. From an urban town it became an agricultural village and has been so treated at settlements in the British rule. The outstanding fact remains that for a considerable period the main occupation of this village has been agriculture and the land in it is being used for agriculture. The proximity of this village to Kanauj and Makrundnagar cannot convert it into an urban area when we find that the occupation of the population in it is mainly agriculture and the land is being used for that purpose. It is true that a part of Alauddinpur is in the municipal limits of Kanauj even now but merely from that fact the inference does not follow that the whole of this village has lost its character of an agricultural village. In this connection Sheo Shankar Das v. Ram Tahar Koeri ('27) 14 A.I.R. 1927 All. 605 and Rafiullah Khan v. Mt. Mumtaz Begum ('27) 14 A.I.R. 1927 All. 609 may be referred to. I agree with the learned Civil Judge that Alauddinpur is an agricultural village.
5. The second question is whether the custom conferring upon the ryots a title to transfer their houses is established or not. The dastur-i-dehi prepared at the settlement of 1872 records no such custom. On the other hand it provides that the tenants have no special right, in regard to the houses occupied by them in the abadi. It is a well established rule now that in an agricultural village ordinarily the ryots have no right to transfer the sates of their houses. If in any agricultural village any such custom prevails then the dastur-i-dehi of the wajib-ul-ara usually provides for it. The absence of any entry about such a custom in the dastur-i-dehi of this village is a circumstance going against the appellant.
6. Fiftythree deeds of transfer ranging between 1882 and 1937 were produced by the appellants. An analysis of these documents will show that 21 of them were of less than 12 years. The learned Civil Judge has discarded them. Learned Counsel for the appellants relies upon Kallumal v. Ganeshilal ('36) 23 A.I.R. 1936 All. 119. I do not think that this case supports the appellants' contention altogether. At page 123 their Lordships observe:
The lower appellate Court has also rejected all the documents within 12 years on the ground that they were still liable to be questioned. This is in one sensa a reasonable view. At the same time it may be mentioned that there was no proof given in the Court below that these deeds had in fact been challenged by the time the suit was brought, nor is there any suggestion now made before us.
7. The rejection of these documents by the| learned Civil Judge was thus not unreasonable. On the other hand, we have a very recent case of this Court, Bisheshar Dayal v. Chhedalal 32 A.I.R. 1945 All. 439, in which 33 sale deeds within 12 years of the date of the suit were rejected on the ground that they did not furnish any evidence at all because they were still liable to be defeated. In view of this recent pronouncement I agree with the lower appellate Court that the 21 deeds of transfer which were made within 12 years of the suit were no evidence in respect of the custom relied upon by the appellants.
8. Nine deeds produced by the appellants were transfers by way of simple mortgages only and the Civil Judge also rejected them. On this point also the learned Counsel for the appellants-relies upon Kallumal v. Ganeshilal ('36) 23 A.I.R. 1936 All. 119. Dealing with this point the learned Judges observe as follows:
Simple mortgages are deeds of transfer and their execution would be governed by the same custom of transfer. It has been suggested on behalf of the zamindars that it is very difficult for the zamindar to finds out the execution of such simple mortgages. But on would expect that zamindars would have their agents in. the village if they do not reside in the village themselves, and that in any case if they find that during recent years the tenants are transferring houses on a large-scale they would be on the look out for finding out, such transfers, which they could easily discover by an ordinary inspection at the registration office. We do, not see how these simple mortgages are to be ignored' altogether and cannot be relied upon by the defendant, as any instance in support of the existence of the custom.
9. On the strength of this authority no doubt the simple mortgages cannot be eliminated from evidence altogether. But certainly the evidentiary value of such transfers is comparatively very small as against sale-deeds which are accompanied by transfers of actual possession. In this connection I may invite attention also to the decision dated 11-5-1944 by Hamilton J. in case No. 648 of 1942 in which simple mortgages were ignored from consideration.
10. Seven deeds produced by the appellants were deeds of transfers of houses in favour of the zamindar. These transfers were obviously with the consent of the zamindars and cannot be treated as establishing a custom giving the ryots rights to transfer their houses without the consent of the zamindar. After the consideration of the above deeds, we are left with only 16 deeds of transfer out of which 14 or 15 were in favour of the tenants residing in this very village and had thus not the effect of introducing any stranger in the village. These transfers are no doubt relevant, but their evidentiary value for custom is not as strong as it would be if they were in favour of strangers.
11. Another class of evidence bearing upon the question of this custom consists of judgments. There is firstly the judgment (Ex. G-2) of 1896 by the settlement officer relied upon by the appellants. The first point to be noted is that it relates to that part of village Alauddinpur which is a part of the town of Kanauj. No doubt according to this judgment the right of the ryot to transfer the sites of their houses was recognised. But the important point to be noted is that despite this judgment we do not find a recognition of this right in the dastur-i-dehi which was subsequently prepared in 1872, It would not be too much to presume that subsequently the ryots were found not to possess any proprietary or permanent interest in the sites of their houses and for this reason in the dastur-i-dehi of 1872 no entry of this fact was made.
12. The second document of this class relied, upon by the appellants is the judgment dated 10-5-1911 by the District Judge of Farrukhabad. The learned District Judge, relying upon the settlement Officer's judgment of 1896 held that the owners of houses in Alauddinpur are also the proprietors of the sites thereof. It is to be noted that he too was dealing, with a piece of land which was situated in that part of Alauddinpur which was in the town of Kanauj. The custom whereby the ryot had the power to alienate the sites of their houses was not in issue before the learned District Judge. The question was whether after a house had fallen down its purchaser had a right to bring the site of that house under cultivation. It was in that connection that he held on the basis of the decision of the Settle merit Officer, 1896, that the purchaser of the house had a right to use the site thereof also for agricultural purposes. It is not shown that the plaintiff's predecessor was a party to any of these two judgments.
13. There is a judgment dated 30-9-1924 passed by the Additional Subordinate Judge, Farrukhabad which is relied upon by the plaintiffs-respondents. The learned Subordinate Judge held that Alauddinpur is an agricultural village and all the incidents thereof apply to it. This is certainly a decision which does support the plaintiffs-respondents' contention.
14. Taking into consideration the cumulative effect of the absence of the record' of custom in the dastur-i-dehi, the meagre documentary evidence (only 16 deeds of transfers) supporting the alleged custom and the divergent decision given by the Courts on this question in the past (compare the judgment dated 10-5-1911 by the District Judge and the judgment dated 30-9-1924 by the Additional Subordinate Judge), it cannot be said that the evidence for the custom is sufficient. The onus lies heavily upon the ryot to prove such a custom with clear and cogent evidence, and I have to doubt in my mind that on an analysis of the evidence adduced in the case the defendant cannot be said to have discharged such an onus.
15. There is, however, one aspect of the case which has escaped the notice of the learned Civil Judge. The suit was for the possession of a house and the learned Civil Judge has decreed the claim for it. The plaintiff as zemindar is entitled to the site of the house, but not to the materials thereof and clearly the decree of the lower appellate Court whereby the plaintiff has been awarded possession of the materials also cannot be upheld.
16. For the reasons given above the appeal is allowed in part. The decree of the lower appellate Court is modified and the suit is decreed, for the possession of the disputed site only. The defendants are allowed three months from the date of this judgment to remove the materials of their house from the site. In default, the plaintiffs will be entitled to have the materials removed through the Court and to obtain the possession of the site. The plaintiffs-respondents will have 1/3rd of the costs and the defendants-appellants 2/Srds of the costs throughout,
17. Permission for Letters Patent Appeal was asked for and refused.