AMIRANNESSA BIBI Vs. HATEMALI KHAN

JUDGEMENT

(1.) This appeal has arisen out of a suit which was instituted by the plaintiff for declaration of his title as khadem in respect of certain properties dedicated to a shrine and for recovery of possession thereof. Shortly put, the plaintiff's case was that on the death of the last khadem who had died childless he was, in accordance with a usage which appertained to this shrine, was elected as the next khadem by the villagers with the sanction of the zamindar of the place, who for the sake of brevity will be called the Delduar Zamindar. His case was that the defendants had dispossessed him from the suit land. Amongst the defendants there were two, namely, defendants 3 and 6, the daughters of the last khadem, who contested the plaintiff's claim. Their case mainly was that since their father's death they had been acting as khadems through their husbands and that khademship was hereditary in their family. They further challenged the validity of the title which the plaintiff set up, alleging that the plaintiff, even if she had bean appointed as khadem by the Delduar Zamindar, had no authority to act as such.

(2.) The trial Court dismissed the suit. The Subordinate Judge has reversed that decision. Defendants 3, 6 and 7 have then preferred the present appeal. Three points have been urged in support of the appeal. The first point taken relates to the findings of the Subordinate Judge on the question of the usage which the plaintiff set up. It is said that the findings of the learned Judge on this question are inconsistent, and that in any event, they are not sufficient for the purpose of holding that the plaintiff has proved his title to the khademship. The learned Judge appears to have referred to certain texts and to have laid down as the proposition to be applied to the case that the appointment of sajjaddanashin of any darga must, to a large extent, be regulated by the practice followed in that particular darga. With this proposition in mind the learned Judge proceeded to consider whether it has been proved that a usage of the nature set up on behalf of the plaintiff had bean established or not. He found that there was evidence of only one single instance when a practice of the nature alleged on behalf the plaintiff, namely, an election by the villagers and then confirmation of the election by the Zamindar of Delduar was proved. That incident was in connexion with the appointment of one Shah Mahmud to the office of khadem in respect of this very shrino. The learned Judge agreed with the Munsif holding that it was proved that Shah Mahmud got the khademship in this way. He then proceeded to make a remark which runs in these words: This one instance however cannot establish a practice or usage. I agree with the learned Munsif so far but it might have been the correct procedure and I will now examine this point. The practice may now bo difficult to prove but it might have been otherwise when Shah Mahmud came to the post.

(3.) This remark of the learned Judge has been relied upon by the learned advocate, who has appeared on behalf of the appellants, as suggesting that the learned Judge came to the conclusion that the usage set up on behalf of the plaintiff has not been proved. I am not able to agree in this contention. All that the learned Judge says in the passage quoted above is the fact that there was one single instance proved and that single instance by itself would not be sufficient to prove a usage, But then he expressly said that it may be that it is not possible for the plaintiff to prove at this distance of time a usage which he set up and it may yet also be that is the correct practice to follow in the case of a vacancy occurring by the death of the khadem without leaving any child. In point of fact also the learned Judge proceeded to consider the other facts and circumstances of the case and eventually he found that the election of Shah Mahmud in this way was recognized and assented to by the villagers and from that fact he came to the conclusion that was really the practice which obtained in this particular shrine. In my opinion there is no inconsistency in the conclusion which the learned Judge has recorded and that eventually the learned Judge has come to the conclusion upon all the facts and circumstances of the case that although there was no direct evidence sufficient for the purpose of holding that the usage referred to on behalf of the plaintiff was established yet the practice that obtained at the time of the election of Shah Mahmud was a practice which really appertained to this shrine and that if the plaintiff was appointed under a similar practice the plaintiff's appointment also must be held to be good. The first point taken in my opinion cannot succeed.