Judgement Appeal by special leave from a decree of the High Court (November 7, 1906) reversing a decree of the Subordinate Judge of Aligarh (July 25, 1904) which had set aside a decree of the Munsif of Etah (September 22, 1903). On January 9, 1903, the appellants sued the respondent and other persons, praying that an order of the Revenue Court refusing to enter them as proprietors of the property in suit might be cancelled and that they might be declared the owners thereof in possession and entitled to the entry of their names in the revenue papers. The property in dispute situated in Rampur consists of three classes—(1.) dwelling-houses, (2.) lands which had formerly been occupied by houses which had fallen into ruin, and (3.) groves. The first two classes were admitted either to be or to have been dwelling-houses and were sold several times over before they came into the possession of the plaintiffs. The first class were brought under cultivation after the houses were removed or had fallen down and were assessed to rent on the report of the manager of the Court of Wards in 1875. This rent was paid to the respondent. The second class were not assessed to rent but were liable to be so assessed according to the judgment of the Munsif. From a number of revenue and village papers in the record it appeared that the respondent succeeded her husband as the zamindar of the whole village of Rampur. The appellants case was that their vendors were the absolute owners of the said lands, which had always been freely transferred without any opposition on the part of the respondent and her predecessor in title. The respondent on the other hand contended that the vendors were merely tenants having no power of sale. The Munsif found that Rampur was not an agricultural village, but a town, and with regard to two of the plots of land specified in the pleadings that they " once formed the sites of houses, and were sold several times even after having been brought under cultivation. The Munsif found that Rampur was not an agricultural village, but a town, and with regard to two of the plots of land specified in the pleadings that they " once formed the sites of houses, and were sold several times even after having been brought under cultivation. The leading case declaring the right of an agricultural tenant in the house occupied by him was laid down in Sri Girdhariji Maharaj v. Chote Lal and Others ([ 1898] W. N. 27.) in these words According to the general and well-known custom of these Provinces, a custom so well established that it may be treated as the common law of the Provinces, a person, agriculturist, or agricultural tenant who is allowed by a zamindar 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, and so long as he does not abandon the house by leaving the village.’ He has no saleable interest in the house except as to its materials. It was also declared that a special custom allowing the sale of houses in such a village was a bad custom .... The two plots were assessed to rent which has always been paid by the tenants to the zamindar. " So far as those plots are concerned the plaintiffs vendors could be nothing more than occupancy tenants, and as the zamindar has been acquiescing in the sales of such rights in the abadi land the plaintiffs are in my opinion also the occupancy tenants." For the same reason the Munsif held that two other specified plots were both liable to be assessed to rent. As to the groves he added It may be safely said that sales of groves are common in several districts of these Provinces, but the right which passes to the vendees in such case is a right to the fruit and the wood but never to the land. As to the groves he added It may be safely said that sales of groves are common in several districts of these Provinces, but the right which passes to the vendees in such case is a right to the fruit and the wood but never to the land. There have been cases no doubt where the right of the tenants to sell groves was contested by the zamindars, but never before has such a vendee claimed the right to the land also." As to the suit for possession and damages the Munsif said " As I have found that the plaintiffs are tenants and the defendant Rani is their zamindar the suit is not cognizable by a Civil Court. Nor does a suit lie merely for mutation of names or correction of revenue papers. I therefore dismiss the suit with costs.1 The Subordinate Judge in first appeal agreed with the Munsif in finding that Rampur was not an agricultural village, but on the remaining questions he came to different conclusions. He held that the plaintiffs or their predecessors in title had never been tenants of the zamindar; that they were the owners of the sites of the houses; that what was sometimes called " rent w in the assessment of 1875 was really revenue, and that this was borne out by the assessment of the dami cess and by the entry of the plaintiffs names in the revenue papers as seer holders and not as tenants. He further held that the plaintiffs were owners of the groves and that they and their predecessors in title had held adverse possession of the groves in dispute for over twelve years. He accordingly reversed the Munsifs decree and passed a decree granting the plaintiffs "ownership and possession of the said plots." The High Court, whose judgment is reported in I. L. R. 29 Allah. 203, found that the facts of the case were undisputed and that the respondent was entered in the revenue papers as the zamindar of the entire mahal. He accordingly reversed the Munsifs decree and passed a decree granting the plaintiffs "ownership and possession of the said plots." The High Court, whose judgment is reported in I. L. R. 29 Allah. 203, found that the facts of the case were undisputed and that the respondent was entered in the revenue papers as the zamindar of the entire mahal. The High Court did not refer to the contention that no such action as the present could be brought in the Civil Court, but stated, " Apart from the question of form the object of the suit is to obtain a declaration that the plaintiffs are the absolute owners and proprietors of the purchased plots of land and to establish their title thereto against the defendant," add, after referring to the wajib-ul-arz (record of rights), proceeded " The inference of law that the Subordinate Judge has drawn from this evidence (about which there is no dispute) is that the occupiers of the groves and of the land which had been the sites of the houses were the absolute property of the person who occupied and used them. In our judgment this inference is a wrong and impossible inference and the decision of the learned Subordinate Judge based thereon is clearly wrong." Dube, for the appellants, contended that on the evidence and the right construction of the wajib-ul-arz in 1872 relating to Rampur they and their predecessors in title were proved to be the owners of the lands in suit. The Subordinate Judge had so found, and his judgment in second appeal was final on a question of fact and the High Court was bound thereby see Civil Procedure Code, 1882, ss. 584, 585. Both the Munsif and the Subordinate Judge had found that Rampur was not an agricultural village but a town to which the wajib-ul-arz did not apply. When the lands in suit were brought under cultivation the Government assessed revenue thereon in the course of the settlement of 1872. At that time the plaintiffs predecessors were described as muafidars and objected to assessment. When the lands in suit were brought under cultivation the Government assessed revenue thereon in the course of the settlement of 1872. At that time the plaintiffs predecessors were described as muafidars and objected to assessment. The settlement authorities explained that the muafi land would be resumed and assessed to revenue and that they " would as usual have a right to make a mortgage and sale of the same." The wajib-ul-arz provided that the occupiers of houses in Rampur were owners thereof with power of transfer; and it was ordered that the purchasers of groves should be recorded as the owners thereof. Evidence was given of conveyances of the lands in suit for at least sixty-five years prior to the sales to the appellants. In neighbouring towns it has been finally decided that the owners of houses possess heritable and transferable rights in the lands. The evidence was sufficient to prove a custom to that effect. In view of this evidence and of the wajib-ul-arz the onus was cast upon the respondent of proving her title to the lands in dispute and she had failed to discharge it. Reference was made to Lekraj Kuar v. Mahpal Singh (( 1879) L. R. 7 Ind. Ap. 63, 70.); Anant Singh v. Durga Singh (( 1910) L. R. 37 Ind. Ap. 191,197.); Evidence Act I. of 1872, s. 35; Durga Chowdhrani v. Jewahir Singh Chowdhri (( 1890) L. R. 17 Ind. Ap. 122, 127.); Anangamanjari Choudhrai v. Tripura Soondari Chowdhrani (( 1887) L. R. 14 Ind. Ap. 101, 109.) ; Sri Girdhariji Maharaj v. Chote Lal (( 1898) I. L. R. 20 Allah. 248.); r. 13 of the Rules of the High Court dated January 13, 1898; Parbati Kunwar v. Chandarpal Kunwar (( 1909) L. R. 36 Ind. Ap. 125, 131.); Ramgopal v. Shamskhaton (( 1892) L. R. 19 Ind. Ap. 228, 233.); Lukhi Narai Jagadeb v. Jodunath Deo (( 1893) L. R. 21 Ind. Ap. 39, 43.) ; Nilmoni Singh Deo v. Kirti Chunder Chowdhry (( 1893) L. R. 20 Ind. Ap. 95, 97.); Muhammad Imam Ali Khan v. Husain Khan(( 1898) L. R. 25 Ind. Ap. 161, 169.); Act II. of 1901 (N. W. P. Tenancy Act); Act III. of 1901 (Land Revenue Act), both of the United Provinces. Ap. 39, 43.) ; Nilmoni Singh Deo v. Kirti Chunder Chowdhry (( 1893) L. R. 20 Ind. Ap. 95, 97.); Muhammad Imam Ali Khan v. Husain Khan(( 1898) L. R. 25 Ind. Ap. 161, 169.); Act II. of 1901 (N. W. P. Tenancy Act); Act III. of 1901 (Land Revenue Act), both of the United Provinces. Sir Erle Richards, K.C., and W. A. Raikes, for the respondent, contended that the appellants had entirely failed to prove their proprietary rights as alleged or that they had anything beyond tenants rights in the village. The oral evidence was quite insufficient to prove that the village land on which buildings were erected did not belong to the zamindar. The sale deeds and orders of Court filed by them were in favour of the zamindar since they stipulated that the purchaser should have the right to cut and plant trees, which was wholly superfluous on the theory that they were absolute owners. The payment of rent to the respondent or her husband by the appellants predecessors in title was proved. The wajib-ul-arz was strong evidence to shew that Rampur was a zamindari held by a single person, that on his death without male issue his senior widow succeeded, that there were no proprietors of groves except the zamindar, that occupying tenants were entitled to cut down trees but were bound to give notice to the zamindar, that if the land were brought under cultivation the tenant must pay rent, and also that the occupier of a house was the owner of it with power of transfer, but that new houses must be built with the consent of the zamindar. The lands in suit were included in the wajib-ul-arz and were lands of the zamindar unless the contrary was proved in specific instances. The names of the appellants or their predecessors had never been entered in the column of proprietors but in that of tenants. Reference was made to North-West Provinces Rent Acts XII. of 1881 and III. of 1901. So far as this issue depended on the construction of the wajib-ul-arz and other documents it was one of law rather than of fact. See Civil Procedure Code 1882, s. 584; Ramgopal v. Shamskhaton (L. R. 19 Ind. Ap. 228.); Woodroffe and Ameer Alis Civil Procedure Code, 1882, p. 891. of 1881 and III. of 1901. So far as this issue depended on the construction of the wajib-ul-arz and other documents it was one of law rather than of fact. See Civil Procedure Code 1882, s. 584; Ramgopal v. Shamskhaton (L. R. 19 Ind. Ap. 228.); Woodroffe and Ameer Alis Civil Procedure Code, 1882, p. 891. The cases cited by the appellants dealt with pure questions of fact and were not applicable to the facts of this case. Reference was also made to Kakarla Abhaya v. Venkata Papaya Rao. (( 1905) I. L. R. 29 Madr. 24.) Dube in reply. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal by special leave from a decree of the High Court of Judicature for the North-Western Provinces of India, dated November 7, 1906, which reversed the decree of the Subordinate Judge of Aligarh, dated July 25, 1904, which had set aside the decree of the Munsif of Etah, dated September 22, 1903, dismissing the suit with costs. The suit, which related to the proprietary title to lands in Rampur, was brought in the Court of the Munsif of Etah by Lala Fateh Chand, since deceased, and others against Rani Kishen Kunwar and others to obtain the cancellation of an order of January 4, 1902, of a Court of Revenue; for a declaration that the plaintiffs were the proprietors in possession of the lands in the plaint mentioned and as such were entitled to have their names entered in the revenue papers as proprietors; and for consequential reliefs. Some of the lands in question consisted of lands in the abadi of Mauza Rampur. Upon those lands in the abadi houses had formerly stood. It is not clear from the record whether or not all of those lands in the abadi had been cleared of houses and had been brought into cultivation, but apparently they had been brought into cultivation before suit. It is, however, not necessary to ascertain whether or not all of those lands in the abadi had been brought into cultivation, as it is the proprietary title to the land whether covered with houses or not, and not the title to the houses, if any, standing upon those lands, which is in question in this suit. The remainder of the lands to which the suit relates were lands under groves. The remainder of the lands to which the suit relates were lands under groves. Rani Kishen Kunwar was the zamindar of the whole Mauza Rampur, and she alone defended the suit. By her written statement Rani Kishen Kunwar put in issue the alleged title of the plaintiffs as proprietors. Fateh Chand, the deceased plaintiff, had applied to the Revenue Court to have his name entered as that of the proprietor of the lands in question in the revenue papers relating to Mauza Rampur. On January 4, 1902, the Assistant Collector rejected that application with costs, and on January 9, 1903, the plaintiffs brought this suit in the Civil Court. The Munsif of Etah, having found as a fact that the defendant Rani Kishen Kunwar was the zamindar of Mauza Rampur, and that the plaintiffs were tenants and were not proprietors of the lands in the plaint mentioned, by his decree of September 22, 1903, dismissed the suit. Prom that decree of the Munsif the plaintiffs appealed, and in their grounds of appeal alleged that they were the owners in possession of the plots in suit, and that in Khasra Rampur the zamindar is not the owner of the abadi, but the lower class of people, who are her ryots, are the owners. The plaint and the grounds of appeal to which their Lordships have referred put it beyond doubt that the title which the plaintiffs claimed in the Munsifs Court and on appeal from the Munsifs decree was the proprietary title to all the lands mentioned in the plaint, and was not any inferior title. The Subordinate Judge of Aligarh in the appeal found on his construction of the wajib-ul-arz and other documentary evidence that the plaintiffs were the owners of the lands in respect of which the suit was brought, and by his decree declared that the plaintiffs were the owners in possession of the property, and decreed the plaintiffs claim. From that decree of the Subordinate Judge the defendant Rani Kishen Kunwar appealed to the High Court of Judicature for the North-Western Provinces of India at Allahabad. At the hearing of the appeal in the High Court it was urged in argument on behalf of the plaintiffs that, the appeal being a second appeal to which ss. From that decree of the Subordinate Judge the defendant Rani Kishen Kunwar appealed to the High Court of Judicature for the North-Western Provinces of India at Allahabad. At the hearing of the appeal in the High Court it was urged in argument on behalf of the plaintiffs that, the appeal being a second appeal to which ss. 584 and 585 of the Code of Civil Pro cedure applied, the High Court was bound to accept as conclusive and was precluded from questioning the correctness of the finding of the Subordinate Judge that the plaintiffs were the proprietors of the lands in respect of which the suit was brought. Sir George Knox and Richards JJ., who heard the appeal, overruled the objection, and on their construction of the wajib-ul-arz and other documents in the suit in their judgment stated and found " From the judgment of the lower Appellate Court it appears that it is founded on inferences of law drawn by the learned Subordinate Judge from certain documents and the wajib-ul-arz which were given in evidence. The documents shew that the owners of houses in Rampur had been in the habit of selling and transferring their houses. The wajib-ul-arz sets forth that the occupiers of houses had this power, but all through the entries the zamindar is recognized, and it is stated that if a new house is to be built the permission of the zamindar must be obtained. The entry in the wajib-ul-arz as to groves is to the effect that isolated trees and clumps of bamboos planted by the tenant can be cut by him, and as to rent-free groves, if the trees should die out and the land be brought into cultivation, rent must be paid, and that if a new grove was to be planted the leave of the zamindar must be obtained. The inference of law that the Subordinate Judge has drawn from this evidence (about which there is no dispute) is that the occupiers of (Sic in the copy judgment supplied.) the groves and of (Sic in the copy judgment supplied.) the land which had been the sites of the houses were the absolute property of the persons who occupied and used them. In our judgment this inference is a wrong and impossible inference and the decision of the learned Subordinate Judge based thereon is clearly wrong. In our judgment this inference is a wrong and impossible inference and the decision of the learned Subordinate Judge based thereon is clearly wrong. The High Court by its decree allowed the appeal and restored the decree of the Court of the Munsif. From that decree of the High Court this appeal to His Majesty has been brought. The principal ground of this appeal is that the decree of the Subordinate Judge is right and that the plaintiffs are the owners of the lands in dispute. On the hearing of this appeal the learned counsel on behalf of the appellants contended that the judges of the High Court should have accepted the findings of the Subordinate Judge on the question of title as correct and as binding on them in second appeal and were not at liberty to find that the plaintiffs were not the proprietors of the lands in question. He also contended that the judges of the High Court had misconstrued the wajib-ul-arz and the other documentary evidence and had come to a wrong conclusion. He further contended that the wajib-ul-arz of Mauza Rampur, which was made in the settlement which commenced in 1872 and extracts from which are on the record of this suit, cannot be treated as applying to the abadi of Mauza Rampur, the contention being that Rampur, owing to the number of its inhabitants, many of whom are not agriculturists, and owing to the fact that the Government has applied the Chukidari Act (Act No. 20 of 1858) to Rampur, must be regarded as a town and not as a purely agricultural village, to which, according to the learned counsels contention, a wajib-ul-arz is alone applicable. The answer to that contention that the wajib-ul-arz does not apply to the abadi of Mauza Rampur appears to their Lordships to be that the wajib-ul-arz to which reference has been made was prepared by the settlement officer for the whole Mauza Rampur including the abadi, and that all those who were interested were at the time given the opportunity of objecting to the statements contained in it, and further that the Government by applying the Chukidari Act to Rampur did not alter and could not have altered proprietary rights in Mauza Rampur or in any part of the mauza. The wajib-ul-arz is in their Lordships opinion cogent evidence of the rights as they existed when it was made of those holding pro prietary or other rights of property within the mauza, and it has not been shewn that the wajib-ul-arz to which reference has been made in this suit differs in any material respect from the wajib-ul-arz which their Lordships have been informed by counsel was made in the more recent settlement. The judges of the High Court rightly overruled the objection that they were bound to accept as correct the finding of the Subordinate Judge that the plaintiffs were the proprietors of the lands to which this suit referred. That finding of the Subordinate Judge was the result of his having misconstrued the wajib-ul-arz. The right construction of documents is a question of law which judges in second appeals are not by ss. 584 and 585 of the Code of Civil Procedure precluded from considering by any finding of a lower Appellate Court based upon such documents. The Subordinate Judge arrived at his finding by inferences drawn upon an incorrect construction of the wajib-ul-arz, and the judges in second appeal consequently were not bound by his finding that the plaintiffs were the proprietors of the lands. In the wajib-ul-arz it is stated that Mauza Rampur " is a mahal of Zamindari Khalis (held by a single person), and Raja Ram Chandar Singh is the only proprietor without any co-sharer." Raja Ram Chandar Singh was the husband of the defendant Rani Kishen Kunwar, the present zamindar. There is no documentary evidence to shew that the plaintiffs or their predecessors in title ever were proprietors of any of the lands to which this suit relates ; on the other hand, the jamabandi shews that predecessors in title of the plaintiffs paid rent as tenants for some of those lands, and in the Khasra for 1297 Fasli the defendant Rani Kishen Kunwar is entered as the proprietor of some of these lands, and predecessors in title of the plaintiffs are entered as the tenants. The zamindar was not affected by any transfer of lands to which he was not a party, and in the wajib-ul-arz neither the plaintiffs nor any predecessors of theirs are shewn as tenants who had Special rights which were heritable and transferable. The following paragraphs of chapter IV. The zamindar was not affected by any transfer of lands to which he was not a party, and in the wajib-ul-arz neither the plaintiffs nor any predecessors of theirs are shewn as tenants who had Special rights which were heritable and transferable. The following paragraphs of chapter IV. of the wajib-ul-arz relate to groves and houses, and are important— "Paragraph 3.—Relating to the rights of tenants in respect of groves and scattered trees. "A tenant has power to cut down the grove or the scattered trees planted by him in his neighbourhood. "If the land is rent-free and the trees have been removed therefrom and the land is brought under cultivation, the tenant shall have to pay the rent. If in future a grove is planted, it can be planted with the permission of the zamindar. "Paragraph 4.—Relating to the rights of the tenants in respect of the houses in the village and of those which are built. " A person residing in a house is owner thereof and he has power to transfer it ; but in future a new house shall be built with the consent of the zamindar. " The tenants of the lower class have no power to transfer their houses." There is evidence on the record that when land in the abadi is brought under cultivation the tenant has to pay rent for it. In their Lordships’ opinion the judges of the High Court rightly construed the wajib-ul-arz and drew the legitimate inference from it and the other documentary evidence in the suit. On behalf of the plaintiffs-appellants in their appeal the learned counsel who appeared for them pressed their Lordships to advise that the plaintiffs-appellants should be declared to have heritable and transferable rights in the lands in suit and for that purpose admitted that the plaintiffs-appellants were tenants of those lands. Apart from other considerations it is sufficient for their Lordships to say that that is not the claim in respect of which this suit was brought. Their Lordships will humbly advise His Majesty that this appeal should be dismissed and the decree of the High Court be affirmed. The appellants must pay the costs of the appeal.