1. The plaintiffs in this case, who are zamindars, sue the defendant, who is an occupancy-tenant, for a declaration of their right to maintain a custom contained in the sixth clause, fourth head, of the wajib-ul-arz. The material portion of that document is as follows: 'When necessary, one or two bighas out of the tenants' lands are taken with their consent for sowing indigo.' Upon the basis of this, the plaintiffs claim to be entitled to take 16 biswas and 9 dhurs out of the occupancy-holding at a certain period of the year for the purpose of cultivating indigo. In other words, they claim that, notwithstanding the occupancy-tenancy, they may go upon the holding when they please, and plant and grow indigo there, and may oust the tenant for the time being.
2. If I were asked whether I, sitting here as a Judge, should countenance a custom of this kind, I should reply that I regard such a custom as preposterous, and such as no Court of law should recognize. It is unnecessary, however, to deal with the case upon this ground, because the term 'khushi' used in the wajib-ul-arz, indicates that the land is only to be taken with the occupancy-tenant's consent, and the document creates no such right as that alleged, which is to take the land despite the tenant. It has been suggested that, under the further order of the Settlement Officer in reference to this claim, the position of the parties was altered. I do not concur in this view. The order must be taken in connection with the earlier clause of the wajib-ul-arz, wad the words which show the necessity of the tenant's consent being obtained must take effect. I will only add that I am unable to follow the reasoning of the District Judge, much of which appears to be irrelevant in presence of the word khashi in the wajib-ul-arz; while the analogy which he employs to illustrate his observations in reference to this word is somewhat out of place in the judgment of a Court of justice.
3. I am therefore of opinion that the alleged custom has not been established, and that it is not contemplated by the wajib-ul-arz. The appeal must be decreed with costs, and the suit dismissed with costs.
4. I am of the same opinion.
5. I am of the same opinion. It appears to me that the suit is open to objection on the further ground that it is not maintainable under the special provisions of the Specific Relief Act. Its object is to obtain a declaration that a custom prevails in this village which enables the landlord to take land for the purpose of cultivating indigo. No other relief is expressly sought, but the real object aimed at is the temporary ejectment of the occupancy-tenant. The suit is one which, professing to be based on custom, and on the good-will and consent of all concerned, seeks to force the custom upon a most unwilling tenant, who has successfully resisted the landlord in the Revenue Court.
6. I am of the same opinion.