JUDGMENT

Tek Chand, J. - Two non-proprietors occupied a house in the abadi of mauza Jatwar in the Ambala District and sold it with the site underneath to Raja Singh one of the proprietors in the village. The plaintiffs, four in number, who are members of the proprietary body sued for possession of the house alleging that the site underneath the house had fallen to their share in a partition and that, in any case, the sale of the house by the non-proprietors was invalid according to the village custom. The defendants denied the plaintiffs' exclusive ownership of the site and contended that non-proprietors in the village had according to custom the right to alienate it. The Subordinate Judge held a lengthy enquiry into the custom relating to the power of alienation by non-proprietors and found that the alleged custom was not proved. He also came to the conclusion that the plaintiffs had failed to prove that on the alleged partition the house in question and the site underneath it fell exclusively to their share. He accordingly held that the sale was invalid, but in view of the fact that the vendee was himself a proprietor in the village and had a right equal to that of the plaintiffs, he passed a decree for joint possession of the site in favour of the plaintiffs.

2. Both parties preferred appeals to the District Judge who upheld the finding of the trial Court both with regard to the failure of the plaintiffs to prove the alleged partition and that of the defendants to prove the alleged custom. He accordingly confirmed the decree passed by the trial Court in favour of the plaintiff giving them joint possession of the site in suit, but added a direction that the defendant-vendee must within three months from the date of the District Judge's decree remove the materials of the house from the site. The vendee has come up in second appeal to this Court and Mr. Fakir Chand on his behalf has made a faint-hearted attempt to challenge the finding of the learned District Judge on the question of custom; but as no certificate had been granted, this Court is precluded from going into that matter.

3. The only, question therefore, is what is the nature of the decree that is to be passed in favour of the plaintiffs-respondents. The sale of the house by the non-proprietors in favour of the appellant Raja Singh gave him no right whatsoever but at the same time this sale does not deprive him of the rights which he possessed as a member of the proprietary body irrespective of the sale. He is one of the members of the proprietary body and has done nothing to divest himself of those rights. As a proprietor he could occupy a portion of the abadi and build a house on it,

4. If instead of building it himself he has purchased from a non-proprietor the superstructure built by him, I do not think that his position is made worse in any way. In these circumstances all that the plaintiffs-respondents are entitled to is a decree for joint possession of the site. Mr. Muhammad Munir for the respondents has referred to a single Bench judgment of this Court in Sultan Muhammad v. Surkhru Khan A.I.R. 1927 Lah. 197, where a decree for joint possession of the site after removal of the materials standing thereon was passed, but the facts of that case were wholly distinguishable. There the sale had been originally effected by a non-proprietor in favour of a proprietor and the latter had re-sold the property to two strangers who were not among the proprietary body and who had no right to retain possession of the house sold.

5. Accordingly I accept the appeal and vary the decree of the learned District Judge by striking out the direction contained therein that the defendant Raja Singh should remove the materials of the house. Having regard to all the circumstances of the case the parties shall bear their own costs in this Court.