1. The facts of the case which have given rise to this appeal lie within a very narrow orbit. The plaintiff is Zamindar of Mauza Baghthari. The defendant, who is a Lodh by caste, is a reyaya living in the village abadi. Plaintiff alleged that, according to a custom which was recorded in the Wajibularz prepared at the time of Mr. Currie's settlement, certain ryots settled in the village had to pay Re. 1 to the zamindar as bau (the fee of a landlord when a daughter of one of his tenants is married) on the occasion of each marriage or dharicha. The defendant married his daughter in January 1925 and the customary ban was not paid to the zamindar; hence the suit. The defendant denied that the custom obtained in the village and pleaded that the Wajibularz referred to by the plaintiff was a record of contract and not of custom The Court of first instance, upon a consideration of the entire evidence came to the conclusion that the custom was established. It accordingly gave the plaintiff a decree. The lower appellate Court disbelieved the oral evidence produced by the plaintiff. It held that the Wajibularz recorded a custom which obtained 60 years before suit but it dismissed the claim upon the ground that the plaintiff failed to prove the continuance of the custom at the date of the suit.
2. On appeal, a learned single Judge of this Court has reversed the decision of the lower appellate Court and restored that of the Court of first instance. It has been contended that the finding arrived at by the lower appellate Court was a finding of fact, which could not be displaced by this Court in second appeal. We are clearly of opinion that the lower appellate Court had misdirected itself and that its finding was not (binding in second appeal. Where a 'custom is proved to exist, that custom must be held to continue, and the onus to prove discontinuance of that custom lay upon the defendant. The Wajibularz was prima facie a record of custom and it was not necessary to corroborate the entry in the Wajibularz by evidence of specific instances. This was held by the Judicial Committee in Digamber Singh v. Ahmad Said Khan A.I.R. 1914 P.C. 11. The Wajibularz therefore was good evidence of custom. The defendant had not pleaded in his written statement that the custom had fallen into desuetude. This Court therefore was justified in holding on the strength of the entry in the Wajibularz that the custom existed and continued.
3. We accordingly uphold the judgment of this Court and dismiss this appeal with costs.