(BABU) RAM SARAN DAS Vs. PEAREY LAL

JUDGEMENT

(1.) This is a second appeal arising out of a suit for pre-emption by a Hindu pre- emptor of a house sold which is situated in mohalla Kauwa Tola in the city of Bareilly. In the plaint the plaintiff alleged that a custom of pre-emption prevailed in the entire city of Bareilly and especially in mohalla Azamnagar, whereof a number of "mohallas" including Kauwa Tola formed part. The existence of the custom of pre-emption was denied by the defendants. The Court of first instance framed the issue: "Is there any custom of pre-emption in the mohalla in suit," and found that no such custom was established. In the grounds of appeal before the District Judge the plaintiff urged that the finding of the lower Court that the custom of pre-emption did not exist in mohalla Kauwa Tola was erroneous. The learned Judge's judgment also shows that he applied his mind principally to the question whether the alleged custom of pre-emption obtaining in the said mohalla (Kauwa Tola) did not exist. He agreed with the first Court and held that it was not established.

(2.) The question of the existence of custom is substantially a question of fact, and the finding would ordinarily be binding on us in second appeal. Of course, if the Court below has approached the question from a wrong standpoint or has thrown the burden of proof on the wrong party or has wrongly assumed a condition to be necessary, which is not required, the finding may be vitiated. Similarly, if it has acted upon illegal evidence or acted upon evidence which is legally insufficient to show that the custom is general and of universal application, the finding may be interfered with. Or if in any other way a proposition of law is mixed up with the finding, the latter may become a mixed question of fact and law. Acts found to done in pursuance of the alleged custom would be facts, but the conclusion whether the facts found fulfilled the requirements of the law may be a question of law. The learned advocate, in this case, urges that the learned Judge has approached the question from a wrong standpoint and has erred in law in throwing the burden on the plaintiff to prove the existence of the, custom in the particular locality, viz. mohalla Kauwa Tola, and has ignored the evidence relating to the prevalence of such a custom in the surrounding mohallas. If such were the case, the finding would naturally be vitiated and it would be our duty to examine the whole evidence afresh.

(3.) It is possible to interpret the judgment of the lower appellate Court as implying that the evidence of the existence of the custom in the surrounding "mohallas should be altogether ignored and that the plaintiff is bound to show instances of pre-emption in that very mohallah. At the same time, it is possible that the learned Judge merely meant to hold that; such evidence was not legally sufficient to establish the custom in the "mohalla" in question. In this state of doubt we think it desirable to briefly examine the important pieces of evidence that have been adduced by either party.