KALLU MAL Vs. LGANESHI LAL

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit brought for the ejectment of the defendant who has purchased a house partly pucca and partly kuchcha from a previous owner of the house in the village Chulhauli. The plaintiff is a zamindair of this village and the defendant is a resident of the same village but not a zamindar. The main defence set up by the contesting defendant was that there was a custom in this village according to which the owners of houses therein had a right to transfer them and the zamindars had no right to object to such transfer. A considerable volume of oral and documentary evidence-was produced in this case. The learned Munsif on a consideration of the entire evidence came to the conclusion that the custom was fully established. But on appeal the learned Subordinate Judge has come to a contrary conclusion and has held that the instances are not sufficient to make out a custom. The question in appeal is whether the view taken by the lower appellate Court is correct. So fair as the actual instances are concerned they are proved as facts, and we are bound by the findings of the lower appellate Court as regards the existence of such instances unless its finding is vitiated by an error of law. But the question whether the numerous instances which show the existence of a practice of transferring houses amounted to a custom having the force of law is a matter of inference from the admitted or proved facts and is therefore a question of law: see Municipal: Board, Benares V/s. Kandhaiya Lal 1931 A L J 757. It is an admitted fact that this village, although it is an agricultural village, has a very large population from 6,000 to 7,000 people.

(2.) There are a large number of houses partly kuchcha and partly pucca and some entirely pucca, and the plaintiff's servant Sarnam Singh had admitted that some of the houses may be worth from Rs. 5,000 to Rs. 10,000. The plaintiff Ganeshi Lal had admitted that about 200 men may be employed in service, that 10 to 20 families had no other work except service, that 10 to 20 would be trading, families, that 600 men may be employed as goldsmiths, blacksmiths, carpenters etc., and that the village Chulhauli adjoins Tundla. It is in fact about two miles from that railway junction. The plaintiffs servant Sarnam Singh had also admitted that there have been a large number of sale deeds and mortgage deeds executed in this village dating from a time before he attained the age of discretion and that he was not able to give the number.

(3.) In this Court the defendant filed an application for permission to file additional evidence consisting of 18 deeds of transfer, including 12 sale deeds, 1 deed of gift, 3 mortgage deeds and 2 sale certificates in further proof of the existence of the custom. It was urged on his behalf that as the question is of general importance and it is the number of transfers which is of significance, permission should be given to produce this further evidence. On the whole we have come to the conclusion that no useful purpose would be served by admitting this fresh evidence at this late stage and either sending the case back to the Court below for further finding or giving to the plain-tiff an opportunity to produce rebutting evidence. The documents that are already on the record are in our opinion in themselves sufficient to establish the existence of a custom As pointed out by the learned Munsif the defendant had produced altogether 45 sale deeds, 31 mortgage deeds, 4 deeds of wakf or ekrarnamas and 6 sale certificates. Out of these 5 sale deeds were said not to have been proved. We shall come to this point presently. The oldest instance of the sale transaction was of the year 1878 and the oldest instance of a mortgage was of the year 1874. Out of the 50 sale deeds which were taken to have been proved formally, 12 were more than 30 years old, 34 were 12 to 30 years old and 4 were within 12 years of the suit. Out of the 31 mortgage deeds, 14 were usufructuary mortgages, 1 a mortgage deed by conditional sale and 16 simple mortgages. Ten of these were up to 1912, 2 up to 1918 and 19 more after 1918. The sale certificates were one of 1903, one of 1911, three of 1913 and one of a recent year. These transfers extended over a period of 52 years. It was also remarked by Mr. Dikshit in an earlier judgment that at least 50 per cent of the population were non-agriculturists. Besides this there was oral evidence as well. The plaintiffs on the other hand relied on six judgments-which were said to be in his favour. The learned Munsif examined the judgments in these cases in great detail and pointed out that in the case of 1918 there were only 12 sale deeds and 3 dakhalnamas,, out of which only 7 were old, and accordingly they were held not to be sufficient to prove the alleged custom. The judgments of the Munsifs in 1920, 1923 and 1924 did not contain any decision on the question of the existence or non-existence of this custom, and therefore they were of no help so far as the consideration of the issue in the present case was concerned.