( 1 ) THIS is a plaintiffs appeal arising out of a suit for possession over a house. The plaintiff alleged that he was the zamindar of mohal Basanti Har Prasad in village Nekpur Gauntia beldaran, that the house in dispute was in the occupation of a riyaya, Rajjoo Lal, Who was arrayed in the suit as defendant 2, that in August, 1935, the house was sold by Rajjoo Lal in execution of a simple money decree against him and was purchased by one Chet Ram who sold it to Gopeshwar Babu Mehra defendant 1, that there was a custom in village Nekpur Gauntia beldaran that no riyaya could transfer the site of the house, that the transfer of the house in execution sale was contrary to the custom and was not binding on the plaintiff-zamindar and that, therefore, he was entitled to take possession of the house. The plaintiff further pleaded that Rajjoo Lal was a chantidar (licensee), that he had executed an ijazatnama and had paid rent for the site over which he had constructed the house in dispute and that as such the custom prevalent in the village applied to him. Rajjoo Lal did not contest the suit; only Gopeshwar Babu Mehra defendant 1 contested it. His case was that the plaintiff was not the owner of the site, that village Nekpur Gauntia Beldaran was not an agricultural village, that the custom pleaded by the plaintiff did not prevail in the village and that the execution sale of the house was perfectly valid. The trial Court held that the village was divided into two portions - one portion was to the north of the railway line and the other was to the south of it that the portion to the north of it, in which the house in dispute was situated, had ceased to be agricultural and was a part of the city of Bareilly for, at least, 20 years before the institution of the suit, that Rajjoo Lal and his ancestors, who were beldars, were riyayas of the plaintiff who was the owner of the site, that the custom alleged by the plaintiff prevailed in the entire village including the portion which had ceased to be agricultural and in which the house in dispute was situated and that, therefore, the execution sale of the house and its transfer by Chet Ram to Gopeshwar Babu Mehra defendant 1 was void. In the result, it decreed the suit of the plaintiff. The lower appellate Court differed and held that the portion of village Nekpur Gauntia Beldaran, in which the house in dispute was situated, had ceased to be an agricultural village, that there was no presumption that the custom of non-transferability of the sites by riyayas applied to the portion which had ceased to be agricultural, that the mere fact that Rajjoo Lal was a beldar did not imply that he was a riyaya of the plaintiff, that Rajjoo Lal was not, in fact, an agricultural labourer and that it was not established that the house in suit was given to him or to his ancestors by the plaintiff under a license. Therefore, it allowed the appeal of the defendant. Against this order of the lower appellate Court, the plaintiff has come to this Court by way of second appeal.

( 2 ) THERE are two main points to be considered in the case :

" (1) Whether Rajjoo Lal was in occupation of the house in dispute as riyaya or licensee, and (2) If so, whether there was a custom in the locality in which the house was situated prohibiting the riyaya from transferring the right of residence. "

( 3 ) TO determine both these points it is necessary to find whether the locality in which the house is situated is an agricultural village or not. Both the Courts below have found that the village nekpur Gauntia Beldaran was at one time an agricultural village. This village is divided into two portions by a railway line. The house in dispute is situated in the portion lying to the north of the railway line. It is the concurrent finding of both the Courts below that this portion had become a part of the city of Bareilly and is no longer an agricultural village for at least the last 20 years. In an agricultural village the zami