MUNICIPAL BOARD Vs. KANDHAIYA LAL

JUDGEMENT

(1.) The question raised by Dr. Katju in this second appeal is that there was evidence in the case to prove that in respect of the sale of a house in Benares the Municipal Board could claim haq-i-chaharum as it was alleged that there was a custom in shahr khass where the house is situated that the landlord is entitled to claim one-fourth of the sale price, and that in second appeal this Court is entitled to examine the evidence to see whether he has proved the alleged custom. Mr. Iqbal Ahmad appearing on behalf of the respondents contends that where a Court has found on the evidence before it that the alleged custom is not proved, that finding is a finding of fact which is binding on us in second appeal.

(2.) In support of his contention Mr. Iqbal Ahmad has referred us to the case of Shakira Bibi V/s. Nandan Boy A.I.R. 1922 All. 241, and the decision of this Court in Munshi V/s. Sahu Kedar Nath L.P. A. No. 2 of 1928.

(3.) Dr. Katju has, in support of his contention that the finding of the learned Judge of the Court below is not a finding of fact, referred us to the case of Taj- ammul Husain V/s. Banwari Lal A.I.R. 1926 All. and the case of Rafiq V/s. Shankar Lal .