NATHWA Vs. RAGHUBANS NARAIN SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of possession of a certain plot; in the village site and for demolition of curtain constructions by the defendants the main question that arose in this suit was whether the existence of a custom has been proved in the village of Asaura by which the occupiers of houses in the village could transfer their house together with the sites upon which the houses stand. The trial Court and the lower appellate Court held concurrently that the alleged custom had not been proved. The case came in second appeal before the learned Single Judge of this Court and he considered the evidence relating to the alleged custom and concurred in finding that the existence of the alleged custom had not been proved.

(2.) It has been argued before us that a sufficient number of instances have been proved to justify a finding that the alleged custom was proved and that it is open to this Court in second appeal to weigh the whole of the evidence and come to a finding whether the custom had been proved.

(3.) On the question of law as to how far this Court in second appeal is bound by a finding of the lower appellate Court regarding the existence or non-existence of an alleged custom, we think that the learned Single Judge took a perfectly correct view. He referred to the ruling of the Full Bench in the case of Municipal Board of Banarea V/s. Kanhaiya Lal 1931 All. 199. In that case the Bench remarked: The first question is whether the alleged practice prevails or is usually followed. This is a question of fact. If the finding is in the affirmative, then the second question arises, whether the prevailing practice has the essential attributes of a custom having the force of law. This second question is a question of law, not of fact. If the finding upon the first question is in the negative, then no question of law arises for determination. A finding that a custom does not exist may however involve the determination of both questions. The Court of first appeal may hold that the practice does prevail, but it is not sufficiently ancient, or uniform, or uninterrupted, etc., to constitute a custom modifying the ordinary law. In such a case there would be a question of law for determination in second appeal.