Judgement Appeal (No. 23 of 1931) from a decree of the Chief Court of Oudh (January 3, 1930) affirming a decree of the District Judge of Hardoi (April 29, 1929), which reversed a decree of the Munsif of Shahabad (September 25, 1928). The appeal related to a small plot of land in the town of Pihani in the Hardoi district, of which plot the respondent and his predecessors were proprietors. At the settlement in Oudh in 1864 the plot of land and a kachcha house thereon were occupied by one Ichcha Kori, whose family had rights of occupation. In 1916 Ichcha Koris surviving descendants executed a usufructuary mortgage to the first appellant, whose house adjoined the plot. Between 1924 and 1927 the appellants, who were brothers, demolished the house and erected a masonry thakurdwara, or Hindu temple, at a cost of about Rs. 40,000. In December, 1927, the respondent brought a suit in the Court of the Munsif claiming possession of the land, and for an order that the appellants should remove the materials of the thakurdwara, and that otherwise the respondent should have possession thereof. He alleged that Ichchas family had died out (which proved not to be the case), also that the familys right to occupy was not transferable. 07 Law Rep. 60 Ind. App. 263 ( 1932- 1933) Kanhaiya Lal V. Aim Hamid Ali 108 On January 11, 1928, one Behari, who was the sole survivor of Ichcha Koris family, executed a deed by which he purported " to make a wakf of " his rights in the land " in favour of Sri Thakurji Maharaj of the said thakurdwara," and appointed a trustee. The respondent applied to amend his plaint by impleading the idol and trustee, and by raising a claim that the execution of the deed had the effect of extinguishing the rights (if any) of Behari. The Munsif allowed the above claim to be raised, but without joining the idol or trustee. Upon the trial the Munsif dismissed the suit. He held that the right of occupation was transferable, and finding that Behari had a brother held that the wakf was not material, as it did not exhaust the rights of the family. An appeal to the District Court was allowed, and a decree made as prayed. Upon the trial the Munsif dismissed the suit. He held that the right of occupation was transferable, and finding that Behari had a brother held that the wakf was not material, as it did not exhaust the rights of the family. An appeal to the District Court was allowed, and a decree made as prayed. The District Judge found that Behari was the sole survivor of his family and that the execution of the wakf was an abandonment of the family right of occupation. He held, further, that although there was prima facie a right of transfer, as the land was in a town, that right was negatived by the terms of a wajib-ul-arz of 1871, and that no custom contrary to its terms had been proved. An appeal to the Chief Court (Stuart C.J. and Raza J.) was dismissed, the learned judges agreeing in substance with the views of the District Judge above stated. 1933. April 7, 10. De Gruyther K.C. and Wallach for the appellants. Sir Dawson Miller K.C. and Pringle for the respondent. April 10. The judgment of their Lordships was delivered by Lord Tomlin. In this case their Lordships, with reluctance, have come to the conclusion that they are not able to deal with the appeal in the absence of Sri Thakurji Maharaj, whose interest arises under the wakf, or his representative. In these circumstances, following the precedent in Pramatha Nath Mullick v. Pradyumna Kumar Mullick (( 1925) L. R. 52 I. A. 245.), their I Lordships think that the decrees below must be set aside and the case must be remitted to the Chief Court for directions, as to a new trial with reference to the effect of the wakf with the appropriate parties added. So far as the costs are concerned their Lordships think that there should be no costs of this appeal, but that the costs which have hitherto been incurred below should be left to the discretion of the Chief Court to deal with after the new trial has been disposed of, whether or not there be an appeal after the new trial to the Chief Court. Their Lordships will humbly advise His Majesty accordingly.