Narasimham, J.

1. This is Plaintiffs appeal against the appellate judgment of the Subordinate Judge of Sambalpur reversing the judgment of the Munsif of Bargarh and dismissing the Plaintiffs suit for eviction.

2. The Plaintiffs are the muafidars (a class of proprietors) of Bargarh town in the district of Sambalpur. The disputed plot is 4 cents in area situate in the basti portion of Bargarh town, bearing Hamids Settlement plot No. 607/1. The Plaintiffs case was that when the proprietary interest of Bargarh was under the Court of Wards, one Haradhan Pujari purchased a house situated on the disputed plot from its previous owner Janardan Panda on 21.9.1908 by a registered sale deed. He then obtained the consent of the proprietor (the Court of Wards) to the transfer by paying the usual Nazarana on 2-1-1909-. The Defendant who is a Marwari business-man of Bargarh town, purchased the disputed plat together with the building standing thereon from the said Haradhan Pujari by a sal deed dated 5-6.42, but he did not care to obtain the consent of the Plaintiffs to the transfer. Hence the suit was brought on the ground that the transfer by Haradhan in favour of the Defendant without the consent of the landlord would not bind the latter and that he was entitled to treat the holding as abandoned and take possession of the same. It was also specifically alleged in the plaint that in Bargarh town no person, whether a tenant or a Sukbasi, could validly transfer any basti site without the consent of the proprietors.

3. The Defendant, however, alleged that there was no such custom of obtaining the consent of the landlord and that the basti site was freely transferable. He further stated that the site originally belonged to Jugia Dora, Gopal Dora and Kalia Tiar who had absolute right of alienation over the same. Janardan Panda was said to have purchased the property from them some time in 1890.1900, and to have subsequently sold the same to Hardhan Pujari.

4. The trial Court held that basti site in Bargarh town was not alienable without the consent of the proprietors and therefore decreed the Plaintiffs suit. The lower appellate Court, however, held that the Plaintiffs failed to establish their case of non-transferability without the consent of the proprietors. He also held that the Defendant also failed to establish his case of free transfer ability of basti sites in Bargarh town without the consent of the landlord- Having thus disbelieved the pleas put forward by both parties, he carefully examined the evidence regarding the conditions under which the predecessors-in-interest of the Defendant were in occupation of the disputed plot and held that apart from an isolated instance of obtaining consent by Haradhan during the regime of the Court of Wards in 1909 successive transfers had taken place from 1871 without obtaining the consent of the proprietors. He further held that the disputed plot was in the occupation of the Doras and the Tiars prior to 1871 long before the then Government recognised the status of the Plaintiffs ancestors as muafidars-proprietors of the village Hence, according to the lower appellate Court, the proprietary right of the Plaintiff family was subject to the right already acquired on the disputed plot by the Doras and the Tiars prior to 1871, and that therefore consent of Plaintiffs was not necessary for the transfer of the disputed site.

5. Though the Plaintiffs status as proprietors of Bargarh was hotly contested in the lower Courts, it was rightly not challenged in this Court. The plaint are the descendents of the original muafidars who obtained Bargarh from the then Raja of Sambalpur by a copperplate grant of 1844. This grant was subsequently recognised by the British Government first during Russels Settlement of Sambalpur in 1872 and confirmed in the subsequent Nethersoles Settlement of 1889. Subsequently, there was a partition amongst the co-sharers-muafidars and it may be taken as well-established that the disputed plot fell to the Patti of the Plaintiffs. But the main questioner decision is whether either by virtue of the custom prevalent at Bargarh or by virtue of any contract or any law in force, the Plaintiffs consent was necessary for the transfer of the disputed site by the previous occupant to the Defendant.

6. It is admitted that the disputed plot is a house site (basti) in Bargarh town. As is well-known, there were four settlements in Sambalpur district. The first was Russels Settlement of 1872, prior to the commencement of the Central Provinces Land Revenue Act, 1881. The second was Nethersoles Settlement of 1885-1889, after the commencement of that Act. The third was Dewars Settlement of 1906 and the fourth was Hamids Settlement of 1926. Even during Russels Settlement, the usual Wazib-ul-arz showing the various customary rights of the tenants and the landlords were recorded, but that Wazib-ul-arz does not contain any entry regulating the rights of the proprietors and occupants of basti sites. In the Wazib-ul-arz of Nethersoles Settlement, however, there is the following entry regarding village site. "Every cultivator is entitled to a site for his house rent free. If a cultivator abandons his holding, and leaves the village, he loses all right to any house site he may have held in the village. If a cultivator leaves the village having been ejected from his holding or having relinquished it, he is entitled to remove the materials of his house, provided that he does so within a month." Presumably this entry was made by the Settlement Officer in exercise of the powers conferred by Section 77(b) of the Central Provinces Land Revenue Act, 1881, to record the rights of persons, residents in the village, in any village site. It will be noticed that the aforesaid entry deals with the rights of cultivators only and not with the rights of non-agriculturists: In Dewars Settlement, however, for the first time, the following entry was made in the Wazib-ul-arz regarding the rights of non-agriculturists:

The rights of non-agriculturists in sites occupied and buildings constructed by them are regulated by agreement with the lambardar and punches.

This entry thus definitely indicates that the rights between the non agriculturists-occupants of a house site and the zamindar was regulated solely by a contract between the two. There is no question of any custom as recognised in the Tenancy Laws prevalent in the district. In Hamids Settlement also a similar entry is found. It is true that the Wazib-ul-arz for a zamindary village is not the same as that of a gountiai or malgujari village. But it will be noticed that so far as the rights of non-agriculturists to house sites are concerned, the entry in all the Wazib-ul-arz is identical, namely, that it is purely a matter of contract between the parties In view of the entries in the Wazib-ul-arzs of powers Settlement and Hamids Settlement, it is idle for the Plaintiffs to contend that there was a long-standing custom under which any occupant of a house site within the Mahal of the proprietor was bound to obtain the consent of the "proprietor before he could validity effect a "transfer of his plot. Neither the Central Provinces Land Revenue Act, 1881 nor the Central Provinces Tenancy Act of 1898 nor the customary rights as recorded by the successive Settlement Officers in Wazib-ul-arz support this plea of custom as put forward by the Plaintiffs.

7. It must therefore be held that the rights of the parties to the disputed house site are regulated by agreements entered into between their predecessors-in-interest. As this is a suit for eviction, the burden lies heavily on the Plaintiffs to show that there was an agreement to the effect that a transfer would not be made without the consent of the proprietor. The lower appellate Court rightly held that the Plaintiffs totally failed to prove such an agreement. The disputed plot was mentioned as a house site of the Doras and the Tiars in a partition deed amongst the, Plaintiffs ancestors and their cosharers of the year 1871, There is absolutely no evidence on the side of the Plaintiffs to prove the terms under which the Doras and the Tiars were allowed to occupy the disputed site and to construct a house thereon, It is admitted by the Plaintiffs that these Doras and Tiars sold the property to one of their relations Janardan Panda some time in 1891 or so, But apart from the oral statement of the Plaintiff whose knowledge is obviously based on hearsy, there is no direct evidence show that Janardan, after the purchase of the disputed site from the Doras and the Tiars, obtained the consent of the muafidars. This Janardan is said to be alive and to be a near relation of P. W. 6. Yet he was not examined by the Plaintiffs to show that the consent of the proprietors was obtained. It is true that Haradhan in 1909 took the precaution of obtaining the consent of the Court of Wards when he purchased the property from Janardan. But one instance in which such" consent was obtained would not show that according to the terms of the agreement between the proprietors and the occupant of the house site, such consent was always required. It may be that Haradhan wanted to avoid unnecessary trouble. The Plaintiffs have also relied on the fact that the said Haradhan executed an unregistered kabuliyat in favour of one Gajaraj Das on 30-1-1909, in which he agreed not to transfer the site to any other person, But this Kabuliyat of Haradhan also would not suffice to conclusively establish the Plaintiffs case, though it is undoubtedly a piece of evidence. Gajaraj Das was one of the cosharers-proprietors in 1909 and Haradhan might have entered into such an agreement with a view to purchase peace. If the Plaintiffs wanted to rely on their rights to give consent to transfers, they ought to have led additional evidence to show the conditions under which the original occupants, namely the Doras and the Tiars were allowed to construct house on the land and also the conditions under which Janardhan Panda was permitted to purchase the property and live in the house.

8. The fact that the disputed house is in Bargarh town and it is used for a purely non-agricultural purpose would throw the burden heavily on the Plaintiffs, apart from the general burden cast on them as Plaintiffs in a suit for eviction, As pointed out in the cases of Mohammad Sher Khan v. Amjud Husain and Ors. : A.I.R. 1929 All. 494. "In case of riayats occupying houses in cities and towns, it is to be presumed that they have a right of transfer, unlike those who inhabit agricultural areas" where the presumption is to be contrary, This view has been reiterated in the case of Ram Bharose v. Bishnalh Prasad : A.I.R. 1934 All. 336. An isolated instance of obtaining the consent of the proprietors in Haradhans time would not suffice for any Court to hold that the Plaintiffs have discharged the heavy burden cast on them.

9. I may, in this connection, cite a recent decision of the Nagpur High Court reported in the Case of Krishnarao Skankerrao Chitnavis v. Narayan Venkat Rao and Ors. A.I.R. 199 Nag. 120, In that Case too, several persons in succession were in occupation of Abadi sites long before the first Revenue Settlement of 1863. There was no entry in the Wazib-ul-arz regulating the rights of old occupants and the proprietors. The disputed site was in a village in Wardha district. There was also evidence to show that one of the purchasers of the site had paid some money to the Malguzar with a view to obtain his consent to the transfer, yet the learned Judges held that having regard to the fact that the original occupant of the site was there long before the first Revenue Settlement in favour of the proprietors and the absence of any entry in the Wazib-ul-arz it could not be held that the proprietor was entitled to exist the transferee, unless his consent was obtained to the transfer. The present case is of a very similar type, in view of the admitted position that the residential house was standing on the disputed plot when it was in the occupation of the Doras and the Tiars prior to 1871. The settlement of the British Government with the Plaintiff ancestors took place partially in Russels Settlement in 1872 and was finalised only during Nethersoles Settlement of 1889. The rights between the parties should, having regard to the en tires in the entries in the latter Wazib-ul-arzs, be held to be regulated by the terms of the contract, in view of the admitted position that the disputed plot is within the town of Bargarh and the occupants of the same have all along been non-agriculturists.

10. Mr. Das, however, relied on some Nagpur decisions to show that house sites of even non-agriculturists are not ordinarily transferable without the consent of proprietor and that the burden would heavily lie on the transferee to show that they were freely transferable without the consent of the landlord. These cases, however, deal with the incidents of tenancies in other districts of Central Provinces. Prima facie, they will not apply to Sambalpur district which is governed by the old Central Provinces Land Revenue Act, 1881 and the Wazib-ul-arz prepared by the Settlement Officer under the Act. Thus, in the case of Narain v. Behar 31 I.C. 307 it is not clear as to whether the house site belonged to an agriculturist or a non-agriculturist. Moreover, according to the Wauib-ul-arz of the village, as mentioned in that decision, the tenant had no right of transfer of the house site and was only entitled to take away the building materials. Similarly in Lakshmi Prasad v. Ahmad Kachi A.I.R. 1925 Nag. 39 there was no express provision in the Wazib-ul-arz as in the Wazib-ul-arz of Sambalpur district to the effect that the rights of non-agriculturists over house sites were regulated by the terms of the agreement between them and the proprietors and the Punches of the village. On the other hand, there is a passage in that decision to show that in the Wazib-ul-arz of the village "In the absence of an agreement to the contrary the right to occupy a house and site held by a non-agriculturist is not transferable without the consent of the malguzar". Similarly Bhagwnn v. Raghubar Dayal A.I.R. 1925 Nag. 396 is based on the provision of Section 203 of the Central Provinces Land Revenue Act of 1947 which has no application to old Sambalpur district. The same observation would apply to Madhorao Gadra v. Ramalal A.I.R. 1932 Nag. 30. Ramchandra v. Rupchand : A.I.R. 1934 Nag. 127 on which also reliance was placed was also based on the terms of the Wazib-ul-arz of the village in question. I should further point out that 31 India Cases 307, A.I.R. 1925 Nag 39, A.I.R. 1932, Nag 30 were noticed and distinguished in A.I.R. 1949 Nagpur 120 already cited. Those decisions were held to be not applicable to the rights of persons who occupied Abadi house sites prior to the earliest Revenue Settlement of the Government with the malguzar or proprietor, as in the present case. In any case, the Wazib-ul-arz of Sambalpur district expressly says that the rights of non-agriculturists are regulated by agreement and does not contain any qualification to the effect that in the absence of any agreement, non-transferability should be presumed. Hence the burden would lie heavily on the muafidar-Plaintiff to establish his right to evict the transferee on the ground that the muafidars consent was not taken to the transfer.

11. I would, therefore, maintain the judgment of the lower appellate Court and dismiss the appeal with costs.