KUSHALPAL SINGH Vs. GULZARI LAL

JUDGEMENT

(1.) This is a second appeal from the decree of the Subordinate Judge of Mainpuri, upholding the decree of a Munsif of that district, who dismissed the plaintiff- appellant's suit for recovery of possession of sites of two shops situate in village, Pharha in that district, and for demolition of certain constructions made thereon by the defendants-respondents.

(2.) The plaintiff's claim as set out in his plaint is that he is the sole proprietor of village Pharha; that the sites of the shops in question belong to him as proprietor, and that one Bansidhar, who was his reaya, was the owner of one of the shops, Badri, being the owner of the other. It was further alleged that Bansidhar and the heir of Badri left the village leaving the shops unoccupied, which subsequently fell into ruins. The plaintiff claims to be entitled to possession of the sites in terms of the Wazibularz of the village, which according to him, records a custom under which the occupiers of houses in village, Pharha, have no right to transfer except as regards the materials put up by them. The custom, above referred to, was apparently set up in the plaint in anticipation of the defence that the defendants have obtained by transfers from the original occupiers their right to the sites and the superstructure. The defendants pleaded that one of the shops in question belonged to Makkhan Lal alias Makka Mal, who mortgaged it with possession to Mulchand, father of defendant 2, as far back as 1895. As regards the other shop it was alleged that it was purchased by defendant, 1, Gulzari Lal, from Mt. Koka, widow of Bhola Nath. According to the defendants, Makhan Lal and Bhola Nath were the owners of the shops, and they or their successors-in-title had under the law or custom prevailing in the village a right to transfer not only the superstructure but also the right to occupy the shops. The custom recorded in the Wajibularz and set up by the plaintiff was specifically denied.

(3.) On the pleadings, above referred to, a number of questions arose for decision. As to whether Bansidhar and Badri were the owners of the shops in suit as alleged by the plaintiff or Makkhan Lal and Mulchand were the owners thereof, both the Courts below have foun d in favour of the defendants, that the mortgage-deed and the sale-deed relied on by the defendants were executed respectively by Makkhan Lal and Mt. Koka, widow of Bhola Nath, who were the owners of the shops in question. The plaintiff's allegation that the same belonged to Bansidhar and Badri was held not proved. As a matter of fact, Bansidhar, Badri, Bhola Nath and Makkhan belonged to the same family. Bansidhar was alleged by the plaintiff to be alive, but the defendants alleged that he had. died childless without leaving any heirs other than the representative-in-interest of Bhola Nath and Makkhan. The plaintiff did not produce any evidence to prove that Bansidhar was alive. Apparently Bansidhar's name was introduced by the plaintiff because the defendants were in possession under title-deeds executed by the other members of the family to which Bansidhar belonged. In any case the finding arrived at by the Courts below as regards the ownership of the shops in dispute is conclusive in second appeal and the defendants title cannot be questioned unless the finding of the Courts below on the question of custom is reversed by us.