1. This second appeal arises out of a suit in which the plaintiff-appellant sought to recover haq-i-chaharum from the defendant-respondent on account of a sale which took place on 27th November 1930. The plaintiff alleged that there was a custom under which he was entitled to make this claim. The defendant denied the existence of the custom. The learned Judge of the lower Appellate Court has found that no custom has been proved. The only evidence consisted of some kabuliats dating from not earlier than the year 1922 and two or three deeds of sale executed about the year 1931. The kabuliats were documents executed by the vendees or lessees of certain building sites agreeing that they would pay haq-i-chaharum if they transferred the buildings which they erected. The learned Judge has said that the evidence is quite insufficient to establish a custom. In my judgment, his finding is right, if this is strictly speaking a question of custom at all. I know that it appears always to have been assumed at the bar that this is a question of a custom having the force of law, but if the matter is strictly examined, I doubt whether it is such a question. Nobody, I suppose would assert that the zamindar, if he was making a grant of a building site today would be compelled by any rule of law to lease it or grant it on any particular terms. There would be no custom having the force of law which would debar him from making it a condition in his grant that he would get one-half of the materials if the building was sold or making it a condition that the materials might be sold and not the right to occupy the land.
2. The question really is one of contract between the zamindar and the person in occupation of the site. If the grant was made a long time ago and its nature is not known, it may be inferred from the prevailing practice that a grant was made in a certain form. If it can be shown over a long period of years that the assumption has always been made and acted upon that grants included the conditions that a vendor or a vendee would pay one fourth the purchase price to the zamindar, then it might fairly be assumed that forgotten grant was in the same form unless the contrary was shown. In the present case, as far as we know, the grant to the vendors of the defendant respondent was made a very long time ago and the nature of it is unknown. It has not been shown that at any period when this grant could have been made, there was any practice of exacting haq-i-chaharum. The mere fact that the zamindar began about the year 1922 to make grants of such a nature could hardly justify the conclusion that grants of that nature had always been made. I am satisfied that the plaintiff-appellant has failed to prove that he had any right to recover haq-i-chaharum from the present defendant-respondent. Even if the question is one of custom having the force of law the finding of the lower Appellate Court is justified. I therefore dismiss the appeal with costs. Leave to appeal under the Letters Patent is refused.