SHRI THAKUR RANGJI MAHARAJ BRAJMAN MANDIR BRINDABAN UNDER MANAGEMENT OF SHRI SWAMI SHRI NIWAS 108 GORDHAN RANGA CHARIJI MAHARAJ Vs. MTGULKANDI

JUDGEMENT

(1.) The plaintiff is the zamindar of village Aring. Defendant 5 was the owner of a shop in the said village which he sold to defendants 1 to 4 for Rs. 870 on 19th January 1933. The plaintiff claimed that he was entitled to a 10 per cent. of the sale price as haq-i-zamindari in accordance with a custom prevailing in the village and recorded in the wajibularz and he was thus entitled to Rs. 87 which the defendants had not paid to the, plaintiff and the plaintiff was, therefore, entitled to claim the said sum with interest. The interest upto the date of suit claimed was Rs. 47. The total claim, therefore, was for Rs. 134. The defendants contested the suit on various grounds, two of which are now material for the purpose of this appeal, viz., that there was no such custom as set out by the plaintiff and that the plaintiff was not entitled to any interest. Both the Courts below have dismissed the plaintiff's suit. The plaintiff has filed this appeal. The question for consideration before us is whether the plaintiff has been able to establish a valid custom binding on the defendants.

(2.) It is not denied that the plaintiff is the zamindar of village Aring and as such is, to a great extent, concerned in the transfer of a tenant's house. In many villages the tenants have no right to transfer at all without the consent of the zamindar; in several others custom of transferability has grown up and it has been held that it is for the tenants to prove such a custom. In this particular village in the wajibularz prepared in 1284 F. the custom recorded is in the following terms: " Jah koi shakhs makan apna bechta hai to mushtari se muafiq haisiat makan ke haq zamindari malguzar deh ko milta hai." The learned Counsel for the defendants has urged with great force that it is not mentioned in the wajibularz at what rate the zamindar is entitled to claim this haq-i-zamindari and the words that the buyer has to pay according to the haisiat makan are too vague to be enforced and recognized in Courts of law.

(3.) The first case in which this question arose was in a series of five cases instituted by the zamindar some time in the beginning of this century. The suits were decreed by the lower Courts and a number of second appeals were filed by the defendants transferees in this Court. These cases were numbered as Second Appeals Nos. 626, 627 and 628 of 1904. They were heard and decided on 28th February 1906 by a very eminent Judge of this Court, Sir Promoda Charan Banerji, who held that the custom was established and dismissed the appeals. In the course of his judgment the learned Judge observed that the lower appellate Court relies for its conclusion upon an entry in the wajib-ul-arz of 1284F. which apparently is the record of a custom and not of the wishes of the proprietor. The learned Judge further relies upon a mass of evidence which proves that on the sale of houses in the village the zamindar has received for a number of years a portion of the sale price. The finding is that this payment ranged over a sum varying from 5 to 50 per cent. The plaintiff has claimed only 10 per cent and this the learned Judge considered to be below the rate at which payments had been made to the plaintiff on other occasions. The learned Judge of this Court accepted these findings and held that the suit had been rightly decreed. It is argued by the learned Counsel for the respondents that a custom should be certain and uniform and a custom which left the amount of the claim to the sweet will of the zamindar did not fall in that category and could not be enforced. Learned Counsel argues that this point was not raised before Sir Promoda Charan Banerji and therefore that judgment should not be considered to be of much evidentiary value to establish the custom, and he relies on the observations in the judgment that the zamindar had been charging from 5 to 50 per cent. to show that there was no uniform rate at which the zamindars in the village had been charging their customary dues. Learned Counsel for the respondents has relied on another single Judge decision of this Court in Bhora Laxmi Narain V/s. Badri Das Second Appeal No. 320 of 1936, D/- 21-9-1937, which was a case from a different village Sonkh where the wajib-ul-arz was almost in identical terms, and Ganga Nath J. held that the custom being indefinite and uncertain it was invalid and unenforceable and dismissed the suit of the plaintiff zamindar.