Anant Prasad v. Raja Ram — 1984 DIGILAW 59 (ALL)

JUDGMENT K. Nath, J. 1. One Bhola Agrahari was the owner of the house which fell down and was not in existence at the time when the suit was filed on 28-2-1953. The house was situated on the Abadi land of village Khairabad which belonged to the Zamindar. On 21-12-1905 Bhola had gifted the house to Mahadeo. Kanhai and Swaroop, the sons of his daughter, Srimati Jaggo. 35 or 40 years before the filing of the suit Mahadeo and Kanhai died issueless. In the meantime, village Khairabad was included in the Municipality of Sitapur. On 6-11-1948 Ram Swaroop gifted the so-called house on the land to his sons and wife (Raja Ram and others, plaintiff respondents nos. 1 to 6). Ram Swaroop himself was plaintiff no. 7 but he died during the pendency of the second appeal. According to the plaint, the donee-sons of Ram Swaroop entered into possession so much so that the suit was filed by the sons alone; Ram Swaroop was added as plaintiff no. 7 on the suo motu orders of trial court on 7-7-1958. 2. On 5-1-1962 the then Zamindar- owners of the house-site, Rahmat Husain and Mulazim Husain sold the site to Srimati Kamla Devi by a registered sale deed for Rs. 1,000/-. Kamla Devi was the original defendant-appellants, but she also died during the pendency of this appeal and is now represented by her sons, heirs and legal representatives, the defendant-appellants. The plaintiff-respondents pleaded that they continued to be the owners in possession of the house which, however partly collapsed in heavy rains of 1955, leaving only the boundary walls which continued to exist, that earlier Srimati Sarju Devi, a dancing girl, was residing in the house as a tenant and subsequently continued to possess and reside therein as usufructuary mortgagee on behalf of Ram Swaroop but she had locked the house, left for Gonda, and was untraceable for more than 7 years before filing of the suit. It was complained that since after the rains of 1955, Srimati Kamla Devi started laying claim to the property and made an application to the Municipal Board for permission to make constructions on the land, indeed, for the preceding six days was already making constructions in the Sahan of the property. They therefore sued for a decree for possession "over the house with the land on which the house and the Sahan existed". They therefore sued for a decree for possession "over the house with the land on which the house and the Sahan existed". An injunction was also sought to restrain the defendant-appellants 'from making any construction in the House and to demolish the walls made by the defendant-appellants'. The use of expression 'bouse' is of importance as shall appear hereafter. 3. The defendant-appellant pleaded that Bhola Agrahari's house was in the Abadi site only in his capacity as Riyayah and by custom no Riyayah had a right to transfer the house without permission of the Zamindar. It was, therefore, said that gift by Bhola Agrahari to Ram Swaroop (dated 21-12-1905) and by Ram Swaroop to his sons (dated 6-11-1948) were void and illegal as the permission of the Zamindar had not been obtained. It was next said that atleast from 1941 the house on the land had fallen down and reduced to the condition of an open Ahata so that the site reverted to the Zamindar and Ram Swaroop and his sons not only abandoned the dilapidated house, but also abandoned the village and shifted to another village named Chhaoni Sadar where they have been living. The land, according to the defendant-appellants, thus was only in the form of an open land without any structures with the result that on 5-1-1952 the owner-Zamindars Rahmat Husain etc. sold off the land by a registered sale deed to the defendant Srimati Kamla Devi. They said that they had been in possession and were rightfully making construction thereon. 4. Both the parties laid voluminous documentary and oral evidence. The trial court relying upon the mortgage deed dated 8-3-1940, Exhibit-16, executed by Ram Swaroop in favour of Sarju Devi for Rs. 200/-, found that the house did not exist at least till 1940. He then referred to the ground rent receipts, Exhibits 40 to 43, executed on 25-5-1948, 8-5-1949, 15-6-1950 and 10-7-1951 by Rahmat Husain Zamindar in favour of Ram Swaroop and relied upon the evidence to hold that the house was in existence even at the time when Rahmat Husain sold the land to Kamla Devi on 5-1-1952. He then referred to the ground rent receipts, Exhibits 40 to 43, executed on 25-5-1948, 8-5-1949, 15-6-1950 and 10-7-1951 by Rahmat Husain Zamindar in favour of Ram Swaroop and relied upon the evidence to hold that the house was in existence even at the time when Rahmat Husain sold the land to Kamla Devi on 5-1-1952. He noticed the entries in the Municipal Assessment Register, Exhibit 19, for the period from 1950 to 1955 bearing an endorsement under the signatures of the Chairman of the Municipal Board on 1-9-1949 recording the words "No House, Miso Maar Ho Gaya," and he held it to be of no consequence as the defendant herself had paid the House tax by receipts Exhibits A-15 and A-16 for the period 1956-57 and 1957-58 although it was admitted on behalf of the defendant that she had not constructed any house. The trial court in the circumstances held that the house had been existing on the disputed land at least till 1955. Without referring to the Wajibul arz regarding the rights and obligations of the Zamindar and Riyayah regarding transfer of house and Abadi site thereof, he held that Bhola has no right to make the gift, but in any case the Zamindar had acquiesced in the gift made by Bhola Agrahari to Ram Swaroop in the year 1905 and that Bhola Agrahari and Ram Swaroop continued to own the house as Riyayah and licensee. He also held that since the house consisted of a pacca structure, the licence was irrevocable. He remarked that Ram Swaroop had started living in his own house in Mohalla Major Ganj which was originally part of village Chhaoni Sadar but subsequently included in the Municipal limits of Sitapur. However that Mohalla and Khairabad, where the disputed land is situated, are quite contiguous and the house is at a distance of 40 50 paces from the disputed land. Consequently Ram Swaroop could not be said to have abandoned the disputed land. 5. On these findings the trial court decreed the suit for possession over the disputed land marked EFIG and for the removal of the portion marked PKLO of the disputed walls constructed by the defendants and shown in the Commissioner's map 970, which had been confirmed earlier during the proceedings of the suit. 6. 5. On these findings the trial court decreed the suit for possession over the disputed land marked EFIG and for the removal of the portion marked PKLO of the disputed walls constructed by the defendants and shown in the Commissioner's map 970, which had been confirmed earlier during the proceedings of the suit. 6. The lower appellate court after observing that it could not be said with definiteness whether Bhola Agrahari held that land as lessee or licensee, ultimately recorded a finding that subsequent events showed that Bhola Agrahari was lessee. He observed that it was borne out from the gift deed executed by Bhola Agrahari in favour of Ram Swaroop (and his brothers) that he had been given only the land to raise super structure, and consequently was owner of superstructure only which he gifted to Ram Swaroop. He held that to this gift the Zamindar had acquiesced. The lower appellate court then observed that although the Municipal Assessment for the period 1950-55 contained the assessment order dated 1-9-1949 that the house had fallen down in 1949, there was evidence that the plaintiff had paid Municipal taxes upto 1954 and the defendant had paid municipal taxes after 1956. Interpreting the assessment order contained in the municipal as essment recording "No house, Mis Maar Ho Gaya", he observed that it only meant that sometime in the year 1949 the house became uninhabitable and had mostly fallen down. He remarked that the superstructure might have been roofless, but continued to exist and the municipality continued to realise the taxes from the plaintiff upto 1954 and from the defendant upto 1958. The lower appellate court then mentioned that Srimati Sarju Devi was the tenant and subsequently mortgage in possession of the house on the disputed land but had been untraceable till one day she appeared in court in person during the pendency of this suit, but that fact was not of much relevance. Regarding mortgage, it was held that it had not been redeemed, that Ram Swaroop continued to be mortgagor and Sarju Devi continued to be mortgagee, and therefore the circumstances was not material on the question of abandonment. 7. Regarding mortgage, it was held that it had not been redeemed, that Ram Swaroop continued to be mortgagor and Sarju Devi continued to be mortgagee, and therefore the circumstances was not material on the question of abandonment. 7. He then placed reliance upon the testimony of Rahmat Husain Zamindar and said that although the testimony of that witness contained exaggerations and embellishments, he was entitled to credence when he said that he had transferred only the proprietory rights in the land beneath the superstructure to Srimati Kamla Devi in 1952. He found that Rahmat Husain had been realising ground rent from Ram Swaroop till 1951 and therefore he believed the statement of the witness that the house had existed till 1954 and collapsed in 1955 with only some walls standing. 8. He then held that while the property in dispute was situated in Mohalla Khairabad, formerly a village, and Ram Swaroop etc. started living in Mohalla Major Ganj which was another village called Chhaoni Sadar, but the disputed land was about 30-40 steps away and therefore Ram Swaroop could not be said to have abandoned the disputed property although he allowed it to go into ruins, for a person may live in another house and retain his control and constructive possession over the earlier house. The lower appellate court then held that with the inclusion of Khairabad agricultural village in the Municipal limits, the restrictions on tenants of agricultural village went away and the restriction of transfer set forth in the wajibul-arz became non-existent. He lastly held that the defendant-appellants had only acquired proprietory rights in the land beneath the superstructure. 9. With these findings, the lower appellate court dismissed the appeal, but maintained the defendant appellant's rights to realise the ground rent from the plaintiff-respondents. 10. Learned counsel for the defendant-appellants says that most of the findings recorded by the courts below are contrary to law, have been caused by misreading the evidence on the record and erroneous appre:iatioa of the custom of limited transferability of superstructure with the permission of the Zamindar, as set -forth in the Wajibul-arz. Learned counsel for the plaintiff-respondents says that findings recorded by the courts below .are concurrent findings of fact which may not be interfered within the second appeal. Learned counsel for the plaintiff-respondents says that findings recorded by the courts below .are concurrent findings of fact which may not be interfered within the second appeal. The points urged by either side have to be considered in the light of errors of law, if any, subject to the Anility of the validly recorded findings of fact. There are certain obvious errors in the judgments of the courts below. The wajibul-arz could not be disregarded as dead letter simply because the area of village Khairabad was subsequently included in the municipal limits of Sitapur. The counsel for the defendant-appellant has correctly relied upon the case of Ram Chandra Jaiswal v. Syed Wajahut Husain, 19(51 LLJ 50, on the subject which clearly establishes that the custom recorded in the wajibul-arz has to be complied with even though the concerned village is included within the municipal limits. In the case of Chet Ram v. Manzoor Hasan, 1954 ALJ 187, it was held that wajibul-arz is as effective in a town as in a village. 11. Learned counsel for the plaintiff-respondent has referred to the case of Chhotey Khan v. Mai Khan, AIR 1954 SC 575 , to show that an agreement arrived between the co-shares and recorded in the wajibul-arz at the time of old settlement does not ensure for perpetuity, and holds good during the period of settlement in which it is made, and becomes inoperative when the settlement has come to an end. The matter relating to prosecution of an agreement between the co-sharers stands on a different footing from the record of custom regarding the rights of the Zamindar and Riyayah inter se. In the case of Avadh Kishore Das v. Ram Gopal, (1979) 4 SCC 790 it has been held that wajibul-arz is a part of settlement record and statutory presumption of correctness attaches to it. It is now too late to say that the rights incorporated in the wajibul-arz come to an end merely by expiry of time. Even the Privy Council has held in the case of Fatea Chand v. Knshan, 10 ALJ 335 that wajibul-arz is a cogent evidence of rights as they existed when it was made. In the case of Yash Pat Singh v. Jagannath, 1946 ALJ 132 it has been held that the value of wazibul-aiz has already been accepted to be very high. In the case of Yash Pat Singh v. Jagannath, 1946 ALJ 132 it has been held that the value of wazibul-aiz has already been accepted to be very high. In view ot this clear legal position it is not possible to hold that the rights and obligations of Zamindar and Riyayah recorded in the wajibul-arz have come to an end either by lapse of time or because of the village Khairabad being included in the municipal limits. 12. The lower appellate court again fell into a clear error in holding that Bhola Agrahari held rights of a lessee. The lower appellate court recorded the folio wing findings which is self inconsistent: "It is an admitted fact that Bhola Baniya had somehow made entry on this land with the permission of the then Zamindar. The rtcord is silent about the exact nature of that permission, and it cannot be said with definiteness whether it was lease". He went on to mention that from the gift deed executed by Bhola Agrahari in favour of Ram Swaroop it was borne out that he was given land to raise superstructure, wnich he did accordingly, and was owner of the Super structure, which he was tiansfering in favour of the donee, Ram Swaroop. The gift deed did not mention that any rent was payable for the land. Neither the courts below have held nor there is any material on the record to show that Bhola Agrahari ever paid any rent for the land which he held for the house built by him. There is absolutely no legal basis for recording a finding that the rights of Bhola Agrahari-were those as a lessee. The lower appellate court, then erred in holding that Ram Swaroop used to pay municipal taxes upto 1954. The material on record only shows that the last tax had been paid by Ram Swaroop by Ext-2 dated 11-7-1949 for the year 1949-50. The assessment record of the years 1950-55 contains an order dated 1-9-1949 of the Municipal Chairman consistently with that order, the assessmmt record does not bear any assessment of rental value for payment of tax. The lower appellate court fell in error because it mistook a receipt Ext. 3 dated 4-7-1953 for Rs. The assessment record of the years 1950-55 contains an order dated 1-9-1949 of the Municipal Chairman consistently with that order, the assessmmt record does not bear any assessment of rental value for payment of tax. The lower appellate court fell in error because it mistook a receipt Ext. 3 dated 4-7-1953 for Rs. 2 50 in favour of Ram Swaroop to be a receipt for house tax; on the face of it, it is only a receipt for payment of copying charges for preparation of copies of the assessmmt lists Exts. 18 and 19. 13. Again, the lower appellate court made purverse interpretation of the entry dated 1-9-1949 under the order of the Chairman regirding existence of the house. The words recorded are "Mo house, Mis-Maar Ho Gaya-'. The plain meaning is that no house was in existence on 1-9-1949 and that the earlier house had got destroyed. The lower appellate court interpreted this entry to sigaify that in the year 1949 the house became uninhabitable, that the superstructure may be roofless, continued to exist and that the house had mostly fallen down. This interpretation is absolutely incorrect. 14. The lower appellate court treated the usufructuary mortgage of the house dated 8-3-1940 by Ram Swaroop in favour of Srimati Sarju Devi to be immaterial. It is the own case in the plaint that Srimati Sarju Devi was in possession of the house, had locked it and left for Gonda and was untraceable for more than 7 years prior to the institution of the suit. It is also a finding of the lower appellate court that the usufructuary mortgage was never redeemed by Ram Swaroop. If in 1949 the house had fallen down the mortgage by Ram Swaroop in favour of Srimati Sarju Devi cannot be immaterial. In the case of Roop Singh v. Mitthu Singh, 21 ALJ 280 a Full Bench of our High Court have held that where a dwelling house in Abadi is mortgaged by a tenant and the house has remained vacant for a number of years, having fallen down, with only mud walls standing, nothing remained which could be treated as property of the tenant or his heirs and the property stood reverted to the Zamindar. Similarly, the lower appellate court failed to appreciate the true legal position in consequence of its finding that Ram Swaroop had shifted from the house on the disputed land to another house in which he had been presently living. The view taken is that although Ram Swaroop had shifted from the village Khairabad to another village Chhaoni Sadar (present living house) and had permitted the disputed house to go into ruins, yet he exercised rights over the disputed house for the simple reason that the house presently occupied is at a distance of 30 -40 steps from the disputed house and therefore his right to occupy he house subsisted. The lower appellate court failed to notice that the right recorded in the wajibul-arz was specifically confined to the period of the occupier residing in the village, it ceased since he left the village. It is absolutely immaterial at what distance the other place of residence in a different village was located. In the case of Raj Narain Miner v. Budh Stn, 1 ALJ 673 it was held that a person, agriculturist or agricultural tenant, allowed by the zamindar to build a house for occupation in Abadi, obtains, if there is no special contract to the contrary, a mere right to use the house for himself and his family so long as he maintains the bouse and does not abandon it by leaving the Village. Apart from the fact that the house had no more been in possession of Ram Swaroop ever since he had left it out or latter by mortgage to Srimati Sarju Devi in 1940 and the fact that by 1949 the superstructure had fallen down, the mere fact that he left the village and and shifted to another village put an end to his rights as Riyayah of the former Zamindar and the property would revert to the Zamindar. 15. Again, the lower appellate court fell into error in accepting the Statement of Rahmat riusain, the Zamindar, that originally Bhola and later on Ram Swaroop, used to pay rent for the land to him at the rate of Rs. 1-8 Annas per year till 1951. He lost sight of several facts. The gift deed executed by Bhola Agrahari in 1905 in favour of Ram Swaroop etc. Ext. I did not mention any liability of payment of rent or fee for the land. 1-8 Annas per year till 1951. He lost sight of several facts. The gift deed executed by Bhola Agrahari in 1905 in favour of Ram Swaroop etc. Ext. I did not mention any liability of payment of rent or fee for the land. The learned Judge again failed to notice the provisions of the wajibul-aiz, Ext. A-4, which records the custom of Riyayah constructing the house in Abadi with the permission of the Zamindar, and the Riyayah" s liabilty to pay Nazrana (premium) at the time of permission, and not any rent or. fee. There is no documentary evidence of any payment of rent for the land prior to 1948. The rent receipts Exts. 40 to 43 executed by Rahmat Husain in favour of Ram Swaroop respectively on 25-5-48, 8-5-49,15-6-50 and 7-10.51, apart from the fact that they are only in manuscript in plain paper, mentioned a rent of 12 Annas per year and not Rs. 1-8 Annas per year. In the gift deed Ext. 4 dated 6-11-1948, executed by Ram Swaroop in favour of the remaining plaintiff, his sons, the amount mentioned is not the same, namely 6 Annas and 15 Annas as Lagan, that is revenue. In this connection it is remarkbale that the receipts Exts. 40 to 43 are in the name of Ram Swraoop although Ram Swaroop had already executed the gift deed on 6-11-1948 in favour of his sons, which signifies that the Zamindar did not consent to the transfer of the house by way of gift by Ram Swaroop in favour of the remaining plaintiffs, his sons. 16. The sale deed executed by Rahmat Husain, Zamindar Ext A-7 dated 5-1-1952, in favour of Srimati Kamla Devi the original defendant, is clearly in respect of the 'land' and transfers not only every right and interest of the Zamindar in the land to Srimati Kamala Davi, but also delivered the possession thereof without mentioning any house on the land. The statement of Rahmat Husain that he had only transferred the pioperitory rights for a sum of Rs. 1000/- to Srimati Kamla Devi is too purverse to be believed, for nobody would part with the valuable amount of Rs. 1000/- for a paltry income of 12 Annas per year. Indeed the lower appellate court remarked that there were exaggerations and embelisnments in the statement of Rahmat Husain, but he observed that it was not material. 1000/- to Srimati Kamla Devi is too purverse to be believed, for nobody would part with the valuable amount of Rs. 1000/- for a paltry income of 12 Annas per year. Indeed the lower appellate court remarked that there were exaggerations and embelisnments in the statement of Rahmat Husain, but he observed that it was not material. Having arrived at that assessment of the testimony of Rahmat Husain he should also have realised that Rahmat Husain had nothing at stake in making statement which he did, because he had already parted with the property. The lower appellate court also failed to scruitinise the circumstances of the plaintiff-respondents in its true perspective. The plaintiff-respondents had gone to the extent of stating in the plaint instituted in 1958 that the disputed property was an 'house' when admittedly there was no trace of any house except a broken corner of an old well marked 'G' in the Commissioner's map which had been confirmed in the proceedings before the trial court. On the contrary, at the time of institution of the suit certain foundations and walls constructed by the defendant-appellants were already there. The view of the lower appellate court that because the defendant-appellants paid municipal house tax for 1956-57 and 1957-58 there must have existed a house, is obviously perverse. The payment is only the purchaser's attempt to protect his interest against public dues, if any, by way of extra precautions or to strengthen his rights. The most important and outstanding piece of evidence was the municipal assessment entry of 'No House, Mismmar Ho Gaya' made in September 1949 so much so that it did not raise any assessment claim for recovery of house tax. The Municipal Board is a public institution and house tax is a part of its revenue. No Municipal Board can afford to strike off the claim of house tax, while the house still exists. Both the courts below took a perverse view of this valuable piece of evidence and therefore the finding that the house existed till 1953 cannot be sustained. The house must be held to have fallen down in 1949. 17. It also appears to me that the courts below have failed to appreciate the true legal rights and obligations between the Zamindar and the Riyayah in respect of house built in Abadi by the latter with the permission of the former. The house must be held to have fallen down in 1949. 17. It also appears to me that the courts below have failed to appreciate the true legal rights and obligations between the Zamindar and the Riyayah in respect of house built in Abadi by the latter with the permission of the former. In the case of Shohrat Singh v. Jhugru, 13 ALJ 745, it has been held that ordinarily the Zamin-dars are under Government, owners of every inch of ground, within a Mahal, whether that ground be cultivated or waste; that the tenant comes in as a tenant of the Zamindar, both as regards cultivating land and the site in Abadi. IT has also been held that the general law of the land is that if the tenant abandons the cultivable land or the site in Abadi, then, unless there is some special custom or contract to the contrary, the site on which he has built his house reverts to the Zamindars and the tenant must remove the materials therefrom. 18. In the case of Makka Lai v. Khan Bahadur Raja Mohammad Amir Ahmad Khan, 1951 AWR 11, it has been held that it is the settled law that a sale by Riyayah entitles the Zamindar in the absence of custom of contract to the contrary, to recover possession and usufructuary mortgage by Riyayah has been held to be a transfer entitling the Zamindar to enter into possession. It was, of course, remarked that in the case of a gift there must be an acceptance and the Court went on to hold that where tenants are in possession, it is a clear indication of acceptance of a gift. The transfer was held to be inoperative as well as entitling the Zamindar to recover possession. As already indicated, it is the own case of the plaintiff-respondents that in consequence of the gift made by Ram Swaroop his donee sons, the remaining plaintiffs, entered into possession of the property. The gift dated 6-11-1948 was therefore ineffective and inoperative against the Zamindar who was entitled to recover possession of the property even in consequence of that gift. Bhola and Ram Swaroop in these circumstances, possessed no more than a mere right to use the house so long as they maintained the house and did not abandon it by leaving the village. Bhola and Ram Swaroop in these circumstances, possessed no more than a mere right to use the house so long as they maintained the house and did not abandon it by leaving the village. It is well-established that Ram Swaroop had not only parted with the possession of the house by usufructuary mortgage as far back as 1940, but never secured his possession again so much so that he allowed the house to go into ruins, and leaving the village Khairabad he shifted to village Chhaoni Sadar and the house on the land itself ceased to exist from 1949. In the case of Sahu Bishehwar Dayal v. Chheda Lal, 1945 ALJ 419, it was held that Zamindar is the owner of every inch of the village and the settled law of these Provinces is that the tenant has no right to make a transfer of the house without the consent of the Zamindar. It was also held that when the tenant wants to prove a customary right of transfer, it is for him to establish the same. The wajibul-arz will show that the only right of transfer which the owner of a house built on the Abadi land, with the permission of the Zamindar, had, was a transfer by sale on payment of certain charges to the Zamindar. 19. In the case of Bhaga v. Girvar, 1953 ALJ 164 it was held that where village labourers were permitted by the Zamindar to build a house and live therein, but they abandoned their residence in the village, the purpose of the grant by the Zamindar got abandoned and hence the licence got revoked under clause (f) of Section 62 of the Easement Act and the Zamindar was competent to enter upon the property. In this case, Ram Swaroop and bis sons, that is all the plaintiffs, had left village Khairabad and had shifted to village Chhaoni Sadar and therefore there can be no doubt that they abandoned their residence in the former village and the licence in their favour stood revoked. It is wholly immaterial that the place of residence in other village was only at a distance of 30-40 steps from the disputed site. 20. In the case of Raghuveer Saran v. Param Kirti Saran, AIR 1962 All. It is wholly immaterial that the place of residence in other village was only at a distance of 30-40 steps from the disputed site. 20. In the case of Raghuveer Saran v. Param Kirti Saran, AIR 1962 All. 444 it was held that where a house built with the permission of the owner fell down and no attempt was made to rebuild or construct it within a reasonable period, the licence could hi deemed to have been revoked under Section 62 (f) of the Easement Act, and the occupier must be deemed to have abandoned the purpose of the licence so that he and the acution purchaser could not rebuild it. In the case of Roop Singh v. Mitthu Singh, 21 ALJ 280, a Full Bench of our High Court held that where the house had fallen down, nothing remained which could be treated as the property of the tenant or his heirs, and the property must be held to have reverted to the Zamindar so that it could not be sold or mortgage in a decree against the tenant. The upshot of this case law is that a Riyayah who has built a house with the permission of the Zamindar has absolutely no right or interest in the site of the house and does not possess any transferable right even in the house except in so far as it is recognised by any custom or contract to the contrary; of course he has a right and title to the material of the house which he is always entitled to remove. Even the custom which may provide the right of the transferability has to be applied as it is found, and if the custom happened to be recorded in the wajibul-arz, that is the best evidence thereof and any revocation or rebuttal thereof must be established by cogent legal evidence. At this stage, it would bs material to state the record of the custom as contained in the wajibul-arz of 1872, Ext. A-4, which may be translated as follows :- "Whoever builds a house in Abadi, he does so with the permission of the proprietor in possession, and at the time of constructing the house the proprietor of the land goes to the spot and, after taking premium (Nazrana) from the Riyayah according to status, grants permission to build. A-4, which may be translated as follows :- "Whoever builds a house in Abadi, he does so with the permission of the proprietor in possession, and at the time of constructing the house the proprietor of the land goes to the spot and, after taking premium (Nazrana) from the Riyayah according to status, grants permission to build. The Riyayah and descendents (Aulad) so long as they reside in the village are entitled to sell the material of the house, excluding the land, and gives l/4th of the price as the proprietor's right (Haq Malikana) to the proprietor of the land. So long as the purchaser does not obtain the signature of the proprietor of the land on the sale deed, the sale will not be treated to b e valid............if any Riyayah..............dies issueless or absconds from the village, then that house will revert to actual possession of that proprietor to whom the plot in possession has been allotted............" It would be seen that the general law of non- transferability of the house by the Riyayah is relaxed by recorded custom only to the extent of a right to sell the material of the house ; that the right of the Riyayah and descendants to own the house subsists only so long as they reside in the village and that the only right which the Riyayah has to deal with the property into sell the material of the house. There is no legal right to make any usufructuary mortgage or a gift. 21. On a careful consideration of all the above factors of the case and the true legal position, there can be absolutely no doubt that all the rights of Ram Swaroop in the house and in the site came to an end when he parted with his possession and permitted the h6use to be destroyed definitely by 1949 and left the village Khairabad and started living with his sons in another house in village chhaoni Sadar. The finding of the Courts below that the Zamindar acquiesced to the illegal gift made in 1905 by Bhola Agrahari in favour of Ram Swaroop, although correct, does not protect the gift which had been made by Ram Swaroop in 1948 without permission of the Zamindar, who exercised his right of re-entry by selling the property, so that the rule of acquiescence could not be made applicable thereto. In 1949 itself, at any rate the property reverted to the Zamindar, the purpose of the licence stood abandoned, and the Zamindar by executing the sale deed thereof on 5-1-1952 in favour of Srimati Kamla Devi validly transferred all his rights, title and interest in favour of the latter. It was in consequence of that valid legal right that Srimati Kamla Devi entered into possession of the property and the plaintiff-respondents were not left with any vestige of right, title or interest in the property in dispute. The appeal must succeed. 22. The appeal is allowed. The judgments and decree passed by both the courts below are set aside, and the plaintiff-respondents' suit is dismissed with costs throughout. Appeal allowed.