BASDEO SINGH Vs. SHEO SHANKAR HALWAI

JUDGEMENT

(1.) This and the connected Letters Patent Appeals Nos. 34, 35 and 36 of 1939 arise out of four suits brought by Basdeo Singh and others, plaintiffs, for recovery of haq-i-chaharum, viz., one-fourth of the purchase price of certain houses. The plaintiffs in all the four suits were the zamindars. The houses were sold in execution of certain decrees against the ryots to whom the houses belonged and were purchased by certain persons. The ryots and the auction purchasers were impleaded as defendants to the suits. Three out of the four suits were tried by one Munsif whereas the fourth suit was tried by another Munsif. All the four suits were decreed by the trial Courts as against the ryots, but were dismissed as against the auction purchasers. Four appeals were filed by the plaintiffs in the lower appellate Court as against the decrees in the four suits. One of the defendants, Raghunath Kalwar, also filed an appeal against the decree in one of the suits (suit No. 459). There were thus in all five appeals arising out of the four suits for disposal by the lower appellate Court. Four of the appeals that arose out of suits Nos. 96, 441 and 459 of 1933 were heard and disposed of by Mr. Sheo Harakh Lal on 16 March 1936. He dismissed all the four appeals arising out of the three suits just mentioned. In short, he affirmed the decree of the trial Court in the three suits. The fifth appeal that arose out of suit No. 494 was decided by Mr. Sheo Harakh Lal on 28 August 1936. By his decree he modified the decree of the trial Court and granted to the plaintiffs a decree not only against the ryots, but also against the auction purchasers.

(2.) Four second appeals were filed in this Court against the decrees in the four suits. Two of the appeals were by the plaintiffs, one by the auction purchasers and one by the ryots. We are informed that the second appeals by the plaintiffs were numbered as Second Appeals Nos. 1164 and 1165 of 1936 and the appeal by the auction purchasers was numbered as Second Appeal No. 1870 of 1936 and the appeal by the ryots was numbered as Second Appeal No. 1174 of 1936. All the four appeals were heard and decided by the late Chief Justice on 20 December 1938. He dismissed the appeals filed by the plaintiffs and affirmed the decrees of the trial Courts in the suits out of which those two appeals had arisen. He allowed the appeals filed by the auction purchasers and the ryots. In the appeal filed by the auction purchasers he set aside the decree of the lower appellate Court and restored the decree of the trial Court. In the appeal filed by the ryots he set aside the decisions of the Courts below and dismissed the suit.

(3.) The learned Chief Justice disposed of all the four appeals by one single judgment. He, relying on the Full Bench decision of this Court in Kalian Das v. Bhagirathi ( 83) 6 All. 47, held that the proof of a custom whereby the zamindar of a village is entitled to 1/4 of the purchase money when a house in a village is sold privately is not proof of a similar custom in respect of sales in execution of decrees. He further (held that in accordance with the custom as evidenced by the wajib-ul-arz of the village 1/4 of the purchase money could be realised only from the ryots and not from the vendees. In view of the interpretation put by him on the wajib-ul-arz, it is manifest that the two appeals of the plaintiffs were bound to fail and the appeal of the auction purchaser had to be allowed. We are in perfect agreement with the late learned Chief Justice as regards the interpretation of the wajib-ul-arz. Three of the Letters Patent appeals before us arising out of Second Appeals Nos. 1164, 1165 and 1870 of 1936 must, therefore, fail and are dismissed with coats.