Shanti Swaroop Dhavan, J. - (1.) These are two connected second appeals from two decrees of the Second Additional Civil Judge, Allahabad, modifying two decrees of the Additional Munsif, Allahabad and enhancing the amount awarded to the Plaintiff in each suit. The Respondent in each appeal is the State of Rajasthan but the Appellants are different. The State of Rajasthan filed two suits, one against Shiv Dayal, Appellant in Second Appeal No. 2739 and the other against Nurul Hasan the Appellant in Second Appeal No. 2802. It is alleged in each suit that it was the owner as muafidar and zamindar of 35 acres of land situate in Allahabad in the area known as the Katra; that the Defendant (in each suit) was the ryaya of the muafidar and owned a house constructed on a plot of land belonging to the Plaintiff; that the site of the house was not transferable but the house (amla makan) was; that the Defendant in each suit had transferred by sale the house to a third person; that according to cu -tom the muafidar zamindar was entitled to receive a part of the sale price at the rate of one anna per rupee; that the Plaintiff had asked each Defendant as well as his transferee to pay zar -e -chaharrum but the latter had refused to do so; hence the Plaintiff filed the suit to recover what was due to it as zar -e -chaharrum under the prevailing custom. The suit in Second Appeal No. 2739 of 1960 was resisted by the purchaser as well as the seller but the suit in Second Appeal No. 2802 of 1960 by the purchaser alone. The contesting Defendants in each suit denied the existence of any custom entitling the Plaintiff as muafidar -zamindar to realise any amount from the sale price. Alternatively, they pleaded that the right to receive the zar -e -chaharrum, even if it existed, was confined to the sale price of the building material (keemat amla makan) and did not extend to the price paid for the right to occupy the land.
(2.) The trial court held that the Plaintiff had established a customary right to receive the zar -e -chaharrum at the rate of one anna per rupee of the sale price, but this right was limited to the price paid for the building material and not to the price paid for the right to occupy the site. Accordingly it divided the sale price in each suit into two portions - -one for the sale of the building material and the other for the right to occupy the site. It held that the zar -e -chaharrum was to be paid on the first portion of the sale price but not on second. It further held that the Plaintiff was entitled to receive the amount decreed from the purchaser alone. Accordingly it passed a decree for Rs. 62/8/ - against the purchaser and rejected the rest of the claim.
(3.) The State of Rajasthan appealed. The learned Judge held that the zar -e -chaharrum was payable to the muafidar -zamindar on the sale of "amla makan" and he interpreted these words to mean the sale of the house including the right to occupy the house. Accordingly he held that the Plaintiff was entitled in each suit to receive the zar -e -chaharrum on the entire sale price He also held that the Plaintiff was entitled to recover the amount from the purchaser as well as the seller. Accordingly he allowed each appeal and increased the claim from Rs. 62/8/ - to Rs. 250/ - in the suit in Second Appeal No. 2739 and to Rs. 500/ - in the suit in Second Appeal No. 2802. The award in the first suit was based on the sale price of Rs. 4,000/ - and in the latter suit on the sale price of Rs. 8,000/ -. He also held that the Plaintiff was entitled to recover the zar -e -chaharrum from both the purchaser and the seller. Against this decree the purchasers alone have come to this Court in second appeal, but all the parties in the courts below have been impleaded as the Respondents.;