PATAN RAM Vs. DHANUSHDHARI JI BHAGWAN BIRAJMAN BARA ASTHAN

JUDGEMENT

(1.) This is the defendants appeal against the judgment and decree of Mr. H. K. Ghoshal, Civil Judge, Fyzabad, dated 31 March 1943.

(2.) The plaintiff sued to recover possession of a thatched khachcha house No. 1207 situated in Mohalla Nahar Bagh within the city of Fyzabad, His case was that he is the proprietor of village Chak Gaura Patti, mohal Mahant Ram Manohar Prasad, and that mohalla Nahar Bagh included within this mohal and village. He stated that defendant 3 lived as a raiyat in the said mohalla and village and had sold contrary to the custom of nontransferability the house in dispute to defendants 1 and 2 in April 1941, that defendants l and 2 were in possession, that as a result of the custom the house would be deemed to have been abandoned by defendant 3 and defendants 1 and 2 were mere trespassers. The suit was resisted on the ground that the house being situated within the municipal limits of Fyzabad the custom, if any, did not apply, and that on the contrary residents in the mohalla had the right of transfer and many transfers of houses had taken place without objection from the plaintiff. It was also stated that defendant 3 was a lessee inasmuch as he had paid nazrana for the land and also used to pay annual rent.

(3.) The learned trial Court held that the house in dispute was situated within the Fyzabad city and that there was every presumption that the resident had the right to transfer his house and its site unless a custom or a contract to the contrary was proved. It found that the custom alleged by the plaintiff was not proved and that, even if there was a custom, there had been so many deviations therefrom as shown by several transfers by the residents that the custom had really ceased to exist. It also held that defendant 3 was a lessee. On these findings, the plain-tiff's suit was dismissed. The plaintiff went up in appeal and the lower appellate Court held that notwithstanding that the house was situated within a mohalla of Fyzabad City "iqrar-i-malikan deh", ex. 1, which was a record of the custom, applied; that according to this custom the plaintiff was entitled to recover possession of the house when it was sold by defendant 3; and that, although several transfers by residents of the mohalla had been proved, it had not beta shown that these transfers were within the knowledge of the plaintiff or had not been consented to by him. It also held that defendant 3 was not a lessee. In the result the appeal was allowed and the suit of the plaintiff was decreed.