JUDGMENT 1. One Baldeo was a tenant of the zemindar in the village in question and he owned a dwelling house. He mortgaged the dwelling house to the predecessors-in-title of the defendants first party. After he had made the mortgage he was convicted for an offence and imprisoned. While he was undergoing the imprisonment he died. After his death for some years the house remained vacant and it has been found that it was practically abandoned. The house fell down and all that remained consisted of mud walls. There was also a well as to which the Court of first instance has found that it has not been proved by whom the well had been sunk and the lower appellate Court has not come to a contrary conclusion in respect of the well. The result of the findings is that Baldeo or, if he left any heirs, his heirs abandoned the site, the house fell down and nothing remained which could be regarded as the property of Baldeo. The site naturally reverted to the zemindar who was the owner of it, and he permitted the plaintiff to occupy the site and build on it. It has been found that the building which now exists has been erected by the plaintiff. In these circumstances the plaintiff is entitled to a declaration that the house is not liable to sale in execution of the decree obtained against Baldeo on the basis of the mortgage executed by him So question of custom arises in this case In the circumstances the lower appellate Court was, in our opinion, wrong in modifying the decree of the Court of first instance and in declaring that the decree-holders were entitled to sell the materials of the well and such materials which existed on the spot. As we have said above, according to the findings there were no materials on the spot belonging to Baldeo and it was not proved that the well had been built by Baldeo and belonged to him. There was therefore no property left which could be sold in execution of the decree of the mortgagees as the property of Baldeo. We allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs in all Courts including in this Court fees on the higher scale.