MUHAMMAD FAIYAZ ALI KHAN Vs. BEHARI

JUDGEMENT

(1.) This appeal arises out of a suit brought by Nawab Mumtaz-ud-daula Faiyaz Ali Khan, who in his plaint sets himself out as, and who is further admitted to be, the sole Zemindar of the village to which this appeal relates. The respondents are in the plaint described as the village Banias and his being shopkeepers in the said village. The plaintiff is claiming 12 maunds of cotton seeds or the value thereof. It is true that in the plaint the plaintiff set out that there was a custom of such payment in the village. This amount of the seeds is payable for each shop occupied by the Banins in the Bazar. But in the written statement, which was filed, we note that the respondents themselves alleged that at the most the entry in the wajib-ul-arz amounts to an agreement between themselves and the plaintiff, the terms of which expired at the end of the former Settlement of 1866. As the case went on, it is evident that the Courts below tried the question between the plaintiff and the defendants as a question of pariote. The court of first instance held that the payment of this pariote was a custom proved. He says that it is parjote or ground-rent and not a cess and cannot be called illegal and the wajib-ul-arz of 1866 is a good evidence of the custom set up by the plaintiff but the Court went on to hold, that the custom had fallen into desuetude and dismissed the claim of the plaintiff. The plaintiff went in appeal to the District Judge of Aligarh. That Court took a different view from the Court of the first instance and held that the custom to take ground-rent had not been proved. It, therefore, dismissed the appeal.

(2.) The plaintiff comes here in second appeal and the first plea taken by him is that the entry in the wajib-ul-arz is a record of custom and proves the custom set up by the plaintiff appellant, and a further plea is taken that in any case the plaintiff appellant is entitled to get a reasonable rent of the land in the possession of the defendants-respondents. We are of opinion that the word custom throughout has been wrongly used. In case of an agreement between the plaintiff and the defendants it can never be said of a moment that the rent they paid was rent payable by force of custom. The word used in the wajib-ul-arz is Parjote and points to the fact that if the payment of anything from the respondents to the appellant was due, it was a matter based upon some agreement in the first instance. At first sight the way in which this payment was to be made may strike one as somewhat strange, but it is not so strange as to be impossible. The definition of rent sanctions the view that rent may be something paid in cash and also something paid in kind. When this is borne in mind, we are of opinion that the lower Appellate Court has approached the evidence it had to consider from a wrong point of view. There is on the record the wajib-ul-arz of 1870. We had that wajib-ul-arz read to us and we see nothing in the language which will justify the inference that the matters recorded in paragraph two were unlikely or improbable. We look upon that paper as a statement made fifty years ago, more or less, by a person who was, qualified and had the knowledge necessary to make it. It is not a statement narrating a tradition, but it is a statement by a" person possessing an interest and an existing right in the village. It is extremely improbable that the person was making a statement to perpetrate a fraud or was making a statement which was false to be used fifty years afterwards. There was nothing to rebut that statement and we hold that the payment of parjote by the respondents to the appellant is proved thereby.

(3.) We accordingly set aside the decrees of both the Courts below and decree the plaintiff s claim with costs in all Courts and future interest at the usual rate.