JUDGMENT

Sinha, J. - This is an application u/s 205, Government of India Act, inviting us to certify that this is a fit case for being taken to the Federal Court in that it "involves a substantial question of law as to the interpretation of the Government of India Act, 1935." The facts briefly are these:

The village in dispute is Chhatari in the District of Bulandshahr. It has extensive abadi which is divided into houses and shops. They are occupied by ryots who pay rent only for the shops and not for residential houses, The plaintiff is admittedly its sole zamindar. Shiam Lal is defendant 1, and Shiva Shankar alias Sallo and Baldeo Shankar alias Ballo, defendants 2 and 3, are his sons. Defendant 4 is the son of the brother of Shiam Lal. The first three defendants occupy a house in the abadi of mauza Chhatari. They do not, however, pay any rent or other dues to the plaintiff. The plaintiff came to Court with the following allegations:

The defendants lived in the abadi of mauza Chhatari as ryots and were entitled to use and occupy the said house for residential purposes only, he being the owner of the site of the house. The plaintiff went on to say that the defendants, who were members of a joint Hindu family, were occupying the house, the materials of which were supplied by the plaintiff's ancestors to the ancestors of the defendants and so he was also the owner of those materials. He further went on to say that under the terms of the wajib-ul-arz ryots paid no rent for the occupation of residential houses but did pay rent for the use and occupation of shops and that in the month of January 1939 the defendants, wrongly and without his permission, converted their residential house into a shop. The relief claimed, stripped of unnecessary details, was the ejectment of the defendants or for an injunction directing restoration of the house to its original condition and recovery of damages or for an order fixing the defendants with the liability to pay Rs. 5 per month as rent. The case was based on the wajib-ul-arz, contract and usage.

2. The defence, in the main, of defendants 1 to 3, was that they were entitled to use and occupy the house without any restriction and that the materials of the house were not supplied by the plaintiff or his ancestors. It was also pleaded that no ground rent was payable by the ryots for their houses and that the entry in the wajib-ul-arz did not apply to shops built by ryots or to those shops which formed part of the residential house. It was further pleaded that the wajib-ul-arz related to the shops in existence at the time of settlement when it was prepared and not to the shops which had come into existence subsequently. Lastly, they refuted the charge that they used any part of the house as a shop; all that they had done was to use it as a godown for the stock-in-trade; they denied the contract or usage forbidding the use of the house as a stock room or as a godown or forbidding any transaction of business at the residential houses of the ryots. The validity of the contract and usage, assuming that they had been proved, was challenged on the ground that they were opposed to public policy and forbidden by law. The applicability of wajib-ul-arz to Chhatari, which had been declared a town area under the Town Areas Act, was also impugned. Acquiescence and estoppel were also pleaded. And, finally the bar of Section 56, Specific Relief Act, was set up as against the relief for an injunction.

3. The learned Munsif held that the village Chhatari did not loose its character of an agricultural village; that, under the general law of the province, the plaintiff, as zamindar of Chhatari, was the owner of the site of the house and the defendants were licensees for residential purposes and under the terms of the wajib-ul-arz, the use of the house by the defendants for any purpose other than residential amounted to an infringement of the plaintiff's right. He also found that in a part of the house defendants 1 to 3 w