BHAGWAT MISIR Vs. MTSHEOKALI KUAR

JUDGEMENT

(1.) This is a second appeal by one of the defendants, Bhagwat Misir against concurring decrees of the two lower Courts in favour of the plaintiffs. The family pedigree is given on p. 10. The plaintiff 1 is Mt. Sheokali Kuar, the daughter of Bindadin, who was the last male owner of the property in dispute, and plaintiff 2, Ram Dutt Misir, is the son of plaintiff 1. The plaint sets out that the deceased Bindadin Misir was a resident of mauza Lohra in Azamgarh district, which is in the province of Agra, under this High Court, and he died leaving the property in the plaint which consists of pukhtadari shares paying revenue in the village of Daudpur and qabzadari property paying revenue in the village of Bhagwanpur Manjharia. Both these villages are situated in Pargana Birhar, in the district of Fyzabad, in the province of Oudh, which is not under the jurisdiction of this High Court. The third item of property in the plaint consists of an ahata or enclosure in mauza Lohra in Azamgarh district. The plaint set out that the defendants had interfered with the possession of the plaintiffs in the property in question and asked for a decree. Originally the plaint asked for a declaration but it was subsequently amended or 21 June 1930 and asked for possession, if necessary, and the Courts below have granted a decree in favour of the plaintiffs. After the death of Bindadin the property. was held by his widow, Mt. Jai Ranwarli Kunwar, who died in the month of September 1929, and the plaint was brought, shortly after her death on 2lst December. 1929. The appellant before us, Bhagwat Misir, filed a written statement on 24tbu February 1930 and in para. 5 he pleaded, as follows: In the family of the defendants as well as among the members of the brotherhood of the defendants living in the neighbouring places of pargana Btrhar, of which the defendants are the original resident s, there is a custom that a daughter or her son is excluded from inheritance. Accordingly this custom has all along been in. vogue in the family of the defendants from the time of old and no daughter or her descendant has up to this time ever got any share.

(2.) In para. 9 he alleged that no ahata and trees belonging to Bindadin Misir existed in mauza Lohra and that the plaintiffs-had created a fictitious cause of action in the district of Azamgarh and filed the suit there and the suit was not cognizable by that Court. This question of jurisdiction of the Azamgarh Court has been argued , in second appeal on grounds Nos. 1 and 2, but the argument for the appellant is stultified by the fact that on the very day on which he filed his written statement, 24 February 1930, he filed a plaint in original suit No. 107 of 1930 against the plaintiffs claiming possession of the two houses in the village of Lohra in Azamgarh district, and he filed this suit in the Court of the Munsif at Azamgarh. On p. 50 the lower appellate Court finds that the ahata pertains to the houses and that appellant interfered with the possession of plaintiffs. This action of the appellant clearly shows that there was a dispute between the parties at the time of the pleadings in regard to property in Azamgarh District and therefore it was clear that the Azamgarh Courts had jurisdiction. The suit of the appellant was dismissed by the trial Court and he filed an appeal and his appeal was dismissed by the lower appellate Court. Learned Counsel for the appellant suggested that permission should be given to him to withdraw his plaint in suit No. 107 of 1930 and he appeared to think that if such permission were granted the provisions of the Evidence Act in regard to an admission would in some way allow him to destroy the existence of the admission he made in the plaint. No such result would accrue from permission to withdraw the plaint. We are of opinion that the Azamgarh Court clearly had jurisdiction as there was a subject matter of dispute in Azamgarh District.

(3.) Now the remaining grounds of second appeal which have been argued are that the Courts below were in error in not holding that the alleged custom was proved. The Courts below have examined the instances produced by the parties about the alleged custom in this family and the Courts have held that the instances in which the alleged custom was observed are not so numerous as the instances in which the alleged custom was not observed. Learned Counsel considers that we should examine the correctness of the findings of fact of these instances; but we are of opinion that it is not for a Court of second appeal to go into this matter. It is for the Courts which entertain questions of fact to find out which facts are proved, and when those facts have been found this Court in second appeal can consider the question whether from those facts the conclusion should or should not be drawn that a custom has been legally proved. The main argument however for the appellant was in regard to what he describes as a rewaj-i-am establishing his alleged custom. This is contained in a document called the rewaj-i-am of pargana Birhar, Fyzabad District, Ex. E-1, and it may be translated as follows: Whereas settlement of our village is about to be made by the Government, we have, accordingly, entered in detail the rights of our qaum (caste) which particularly affected our landed property in the papers relating to each village, but those rights which are commonly in use in our castes have not been recorded. Therefore we, the lambardars and cosharers of qaum Brahman, pargana Chandpur Birhar, District Fyzabad, agree (ekrar karte hain) with respect to them as follows: Then follow a number of questions and their answers and question 14 as given in Ex. 49 is as follows: Q. If an owner of land dies without a male issue leaving only daughter or unmarried daughters, ?what are their rights in the property? A. It is not considered that the daughter or daughters have any right of inheritance except this that whoever becomes entitled to the property as heir should get the unmarried daughter or daughters married in an ordinary and moderate manner with the income of that property.