ALI HUSAIN Vs. SYED MAZAHIR HUSAIN

JUDGEMENT

(1.) This appeal and the connected appeal Nos. 1247 and 1248 of 1922, are concerned with only one question, namely, whether the evidence that was adduced in the Court of first instance by "the appellants should have been held to be sufficient to prove the custom set up by the appellants, namely, one in the village of Datiana, by which a ryot could transfer not only the materials of his house but also the site over which the house stood.

(2.) The case has been ably argued on both sides. Mr. Agha Haidar, has taken a preliminary objection to the hearing of the appeal. He argued, on the authority of a sentence to be found in the case of Muarmmad Kamil V/s. Imtias Fatima 4 Ind. Cas. 457 : 31 A. 557 : 10 C.L.J. 29 : 11 Bom. L.R. 1210 : 14 C.W.N. 59 : 19 M.L.J. 697 : 13 O.C. 183 : 36 I.A. 210 (P.C.), that a question of custom was a question of fact and this Court could not go into it in second appeal. It appears that in the case before their Lordships of the Privy Council a custom had been set up and had been negative by both the Courts in India. It is a practice with the Privy Council not to allow a question of fact to be re-opened on which the Courts in India have agreed to pronounce the same opinion: It was with respect to such a matter that their Lordships remarked that they would not go into the question of custom. The question did no arise with reference to Section 100 of the Civil Procedure Code with which I have to deal in this case. A regular string of authorities in this Court has held that it is always open to the High Court in second appeal to see whether an opinion on custom which has been pronounced was based or not on sufficient evidence. The case of Bam Bilas V/s. Lai Bahadur 30 A. 311 : A.W.N. (1908) 112 : 15 A.L.J. 456 : 4 M.L.T. 169.distinctly held this. There are subsequent cases too and one of them is that of Faiyaz Ali V/s. Bekhab Das 61 Ind. Cas. 24 : 19 A.L.J. 104. I, therefore, overrule the preliminary objection and allow the appeals, to be argued on the merits. 2. To begin with, the village in question has been found by the lower Appellate Court to be a purely agricultural village. On this point nothing has been addressed to me to indicate that this was not a correct finding. Indeed, this finding has not been challenged in the memorandum of appeal. I have ascertained with reference to the Census statistics of the last Census of 1921 that Datiana has a population of 2,499 souls. Evidently there is a very large population of ryots in the village as all these 2,500 souls could not be the proprietors. When a question of custom arises, one in the first instance likes to look into the wajib-ul-arz to see whether it has anything to say or not on it. The wajib-ul-arses in the present case are two in number, namely, one prepared in 1873 and the other in 1863. The wajib-ul-arz of 1863 in para. 14 clearly lays down that the adadi or the village site is the property of the zemindars alone. It shows that when a ryot comas to live in the village he has to pay a present (Rasum). When he goes away he can take away the materials provided these have no been supplied to him by the landlord. The wajib- ul-arz of 1873 does not specifically say anything on the position of the ryots but it declares that they render such service as their caste would permit.

(3.) t It has been urged that these wajib-ul-arze & are really the handiwork of the zemindars and that here is no binding authority on the ryots. This is, however, not a correct view of the matter. They are supposed to have been prepared by authorities who are anxious to note down all the customs prevailing in the village.