1. This is a defendant's appeal arising out of a suit brought for the ejectment of the defendant who has purchased a house partly pucca and partly kuchcha from a previous owner of the house in the village Chulhauli. The plaintiff is a zamindair of this village and the defendant is a resident of the same village but not a zamindar. The main defence set up by the contesting defendant was that there was a custom in this village according to which the owners of houses therein had a right to transfer them and the zamindars had no right to object to such transfer. A considerable volume of oral and documentary evidence-was produced in this case. The learned Munsif on a consideration of the entire evidence came to the conclusion that the custom was fully established. But on appeal the learned Subordinate Judge has come to a contrary conclusion and has held that the instances are not sufficient to make out a custom. The question in appeal is whether the view taken by the lower appellate Court is correct. So fair as the actual instances are concerned they are proved as facts, and we are bound by the findings of the lower appellate Court as regards the existence of such instances unless its finding is vitiated by an error of law. But the question whether the numerous instances which show the existence of a practice of transferring houses amounted to a custom having the force of law is a matter of inference from the admitted or proved facts and is therefore a question of law: see Municipal: Board, Benares v. Kandhaiya Lal 1931 A L J 757. It is an admitted fact that this village, although it is an agricultural village, has a very large population from 6,000 to 7,000 people.
2. There are a large number of houses partly kuchcha and partly pucca and some entirely pucca, and the plaintiff's servant Sarnam Singh had admitted that some of the houses may be worth from Rs. 5,000 to Rs. 10,000. The plaintiff Ganeshi Lal had admitted that about 200 men may be employed in service, that 10' to 20 families had no other work except service, that 10 to 20 would be trading, families, that 600 men may be employed as goldsmiths, blacksmiths, carpenters etc., and that the village Chulhauli adjoins Tundla. It is in fact about two miles from that railway junction. The plaintiffs' servant Sarnam Singh had also admitted that there have been a large number of sale deeds and mortgage deeds executed in this village dating from a time before he attained the age of discretion and that he was not able to give the number.
3. In this Court the defendant filed an application for permission to file additional evidence consisting of 18 deeds of transfer, including 12 sale deeds, 1 deed of gift, 3 mortgage deeds and 2 sale certificates in further proof of the existence of the custom. It was urged on his behalf that as the question is of general importance and it is the number of transfers which is of significance, permission should be given to produce this further evidence. On the whole we have come to the conclusion that no useful purpose would be served by admitting this fresh evidence at this late stage and either sending the case back to the Court below for further finding or giving to the plain-tiff an opportunity to produce rebutting evidence. The documents that are already on the record are in our opinion in themselves sufficient to establish the existence of a custom As pointed out by the learned Munsif the defendant had produced altogether 45 sale deeds, 31 mortgage deeds, 4 deeds of wakf or ekrarnamas and 6 sale certificates. Out of these 5 sale deeds were said not to have been proved. We shall come to this point presently. The oldest instance of the sale transaction was of the year 1878 and the oldest instance of a mortgage was of the year 1874. Out of the 50 sale deeds which were taken to have been proved formally, 12 were more than 30 years old, 34 were 12 to 30 years old and 4 were within 12 years of the suit. Out of the 31 mortgage deeds, 14 were usufructuary mortgages, 1 a mortgage deed by conditional sale and 16 simple mortgages. Ten of these were up to 1912, 2 up to 1918 and 19 more after 1918. The sale certificates were one of 1903, one of 1911, three of 1913 and one of a recent year. These transfers extended over a period of 52 years. It was also remarked by Mr. Dikshit in an earlier judgment that at least 50 per cent of the population were non-agriculturists. Besides this there was oral evidence as well. The plaintiffs on the other hand relied on six judgments-which were said to be in his favour. The learned Munsif examined the judgments in these cases in great detail and pointed out that in the case of 1918 there were only 12 sale deeds and 3 dakhalnamas,, out of which only 7 were old, and accordingly they were held not to be sufficient to prove the alleged custom. The judgments of the Munsifs in 1920, 1923 and 1924 did not contain any decision on the question of the existence or non-existence of this custom, and therefore they were of no help so far as the consideration of the issue in the present case was concerned.
4. In the case of 1925 there was no clear mention of the exact number of the in-stances of transfers which were thought hot to have been sufficient to establish the custom. In the litigation of 1929 to 1930 there were 19 sale deeds, 9 of which were only more than 30 years old, 8 of them within 12 to 30 years and 2 were less than 12 years old. There were also five sale certificates. In this case a, learned Judge of this Court accepting the finding of the lower appellate Court held that the existence of the custom was not established and summarily dismissed the appeal under Order 41 Rule 11. The plaintiff also relied on two compromises of 1926, in one of which the transfer was maintained on acceptance of a nazrana, and in the other the plaintiffs who had already taken possession were allowed to retain possession, Now it is important to note that the present defendant was not a party to any of the previous litigations. The judgments in the three previous cases therefore are relevant in order to show the three instances in which the right was disallowed. They cannot operate as res judicata against the defendant. On the other hand those judgments also; show that the then defendant had asserted his right of transfer and had set up a custom though he was not able to produce sufficient evidence to convince the Courts that such a custom existed. Now one must bear in mind the fact that in a case of this kind there is an unequal fight. The plaintiff is the zamindar of the entire village and against him is arrayed the contesting defendant who has purchased a Solitary house froth a resident in the village. No doubt he would have, to some extent the backing and the moral support of the other owners of houses whose interest it may be to establish the custom, nevertheless he has to fight out this case almost single-handed. It should also be borne in mind that it is not an easy task to discover and produce in Court the original deeds of transfer which came into existence within the last 50 to 100 years, and that it is a very expensive task to be able to summon witnesses in order to prove the execution of these old documents.
5. As regards the rejection of some of the documents on the ground that the originals were not produced and proved, it may be pointed out that there is a clear distinction between the case where a question of title arises and the genuineness of the signature of an executant and the effect of the transfer have to be established. For such a purpose, when the terms of a contract have been reduced into writing, no other evidence can be given in proof of the terms of such contract under Section 91, Evidence Act, and the production of a mere copy would not be sufficient under Section 90 for the presumption that the signature was in the handwriting of that person. But as is laid down in Explanation 3 to Section 91, the statements in the documents of a fact other than the facts referred to in the section can be proved by other evidence. The point in issue in this case was whether there was a custom of the transfer of houses in this village. It was open to the defendant to prove this custom by citing instances before the Court, showing any transaction in which such a I custom was asserted or recognised, as well as particular instances in which such custom was claimed or recognised as laid down in Section 13, Evidence Act. The fact that certain sale deeds or mortgage deeds were executed and were duly registered ,and each contained assertions of the existence of the right of transfer would in our opinion be in itself admissible, quite independent of the fact whether the genuineness of the signatures on the originals, of those documents has been formally proved in this case or not. 'The defendant was relying on the existence of such instances only and not en the fact that a particular individual executed a particular document. But even rejecting these five deeds which were not formally proved, there would still remain a large number.
6. The lower appellate Court, however, has approached the case from an entirely different standpoint. After conceding that the village has a population of some 6,000 to 7,000 people and of which 'more than half at least' are non-agriculturists, has proceeded to find that the village is non-agricultural. It has laid some stress on the circumstance that in the earlier wajibularz prepared during the continuance of the settlement of 1833 there was a recital that there was no old custom of transferring houses, but such a recital was omitted from the later wajibularz of 1284 F. (1876-77). The, learned Subordinate Judge has considered that the omission is a material and important fact against the defendant. It seems to us that when a wajibularz is signed by the zamindars only and not by the tenants and residents of the village, the omission of the previous entry as to custom is a circumstance against the zamindars. They apparently failed to satisfy the settlement officer that such a custom existed, and therefore the settlement officer declined to reproduce the entry. The tenants had no voice in the matter and they could not have dictated to the settlement officer the record of such an entry. It rather suggests that the transfers had begun to take place in considerable numbers and it was considered advisable not to make any mention as to the existence or non-existence of a transfer. We do not think that any presumption can be drawn against the defendant, as drawn by the lower appellate Court, that there was no custom in 1284 F. The lower appellate Court has then remarked:
The 91 documents relied on by the respondent date from 1878 up to 1930-a period of only 52 years, which is hardly sufficient to establish a custom in the light of the latest pronouncement in Ganga Kalwar v. Beni Madho 1932 ALJ 111.
7. It is apparently of the opinion that the proof of so many transfers during a previous period of 52 years would not be sufficient to prove a custom. No such hard and fast rule can be laid down. The fact that the defendant has been able to produce sale deeds of a period within 52 years only does not necessarily justify the inference that no previous sale deeds existed. All that it shows is that the defendant has not been able to trace them. The case relied upon by the lower appellate Court was different on fact as there were in all 22 sale deeds and 8 mortgages spread over a long period of 100 years, while the zamindar had also produced no less than 16 instances in which payment of parjawat' was admitted indicating that there was no custom of transfer. The great difficulty in this case is that the lower appellate Court has not analysed the evidence as the trial Court had done and has merely remarked in a general way that as to the 91 transfers the plaintiff seriously challenged the number as to be nothing more than 30 in all, and that the major portion of the 61 documents was either not proved or consisted of simple mortgages which could be safely overlooked. The learned Judge has remarked generally that copies of the deeds were taken as proved without an attempt to summon the original, and in some cases service on the witnesses was insufficient or there was no service at all, and in some cases the copies were accepted without the absence of the originals being accounted for. As he has not mentioned the particular documents with respect to which these remarks were made we are not in a position to have them checked in detail. But it may be pointed out that the learned Subordinate Judge has overlooked Section 65(c) under which where for any reason not arising from his own default or neglect' the party cannot produce the document in reasonable time, a certified copy may be produced. When such a large number of documents have to be produced and proved, it would be very doubtful whether the defendant could have produced and proved them within a reasonable time. A strict adherence to the technical proof of the originals would therefore be contrary to the spirit of that section.
8. The lower appellate Court has also rejected all the documents within 12 years on the ground that they were still liable to be questioned. This is in one sense a reasonable view. At the same time it may be mentioned that there was no proof given in the Court below that these deeds had in fact been challenged by the time the suit was brought, nor is there any suggestion now made before us. The learned Subordinate Judge has also rejected all the simple mortgage deeds, 17 in number, and had said that they should be 'ignored.' It is not quite clear why they should be wholly ignored. Simple mortgages are deeds of transfer and their execution would be governed by the same custom of transfer. It has been suggested on behalf of the zamindars that it is very difficult for the zamindars to find out the execution of such simple mortgages. But one would expect that zamindars would have their agents in the village if they do not reside in the village themselves and that in any case if they find that during recent years the tenants are transferring houses on a large scale, they would be on the lookout for finding out such transfers, which they could easily discover by an ordinary inspection at the registration office. We do not see how these simple mortgages are to be altogether ignored and cannot be relied upon by the defendant as any instances in support of the existence of the custom. Eliminating all such documents the learned Subordinate Judge felt compelled to hold: 'Thus the number left is much less than half of the documents produced.' His estimate of 'less than half' is that the transfers (namely sale deeds) that have been produced range from 30 to 40 in number at the least, covering a period of 52 years, only. This conclusion is arrived at after ignoring 29 documents which he thought were not proved and those within 12 years which he rejected. All these documents were exhibited by the trial Court and formed part of the record in the appeal. They were not ordered to be returned to the defendant. Naturally the lower appellate Court was much impressed with the fact that there were at least three judgments of civil Courts in which the custom had been rejected. But it has already been pointed out that for some reason the defendants in those cases were not able to place before the Court all the materials which are now forthcoming. The present defendant cannot be held responsible for this omission on the part of the other defendant as he himself was not a party to those litigations. It is true that in the last case of 1929 a large number of documents were considered not to be sufficient to prove the custom, but we have now a good deal more of such evidence and other circumstances recited above which were not then placed before the Court. It also appears that the learned Judge was inclined to think that the finding of the lower appellate Court should be accepted in second appeal. Since then we have had the pronouncement of a Full Bench under which the existence or non-existence of a custom is a matter of legal inference to be drawn from the proved facts and instances. It seems to us that if we were to place such a heavy burden on the defendant as laid upon him by the lower appellate Court, the task to prove the existence of a custom would be almost impossible. The Court has to weigh the evidence that has been produced by both the parties and after considering all the evidence has to consider whether the custom is proved or not proved. Now all that is necessary under Section 3, Evidence Act for proving a fact is that after considering the matters before it, the Court either believes it to exist or considers, its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
9. In our opinion when the position of ryots and residents of agricultural villages is weak as against the zamindars of the village the fact that a very large number of such residents have been openly transferring their houses for generations and have been executing registered documents to effect such transfers is a strong circumstance which makes it highly probable that such a custom existed, otherwise they would not have had the courage to make such transfers, nor would transferees have undertaken the risk of acquiring property under such transfers. It is also clear that the first time when an assertion was made on behalf of the zamindars challenging the right of the residents to transfer their houses was in 1918. But no proof was given that previous to this the transfers were ever impugned. Since then the transfers have naturally been multiplying. This is natural as the village Chulhauli being within the two miles of a big railway junction like Tundla is bound to grow rapidly and with the growth of the persons residing there the number of transfers would increase. This would not necessarily show that the residents are out of spite transferring their houses or that they are really creating evidence in support of such a custom. The existence of large transfers are in consonance with the needs of a growing town where new residents come to reside. We may mention in this, connection that in Tajammul Hussain v. Banwari Lal 1926 48 All 77, the custom was found to have been established on evidence not nearly so strong as in this case. Every case must depend on its own circumstance. It is impossible to lay down any hard and fast rule which would govern all cases. In the present case the evidence produced by the defendant satisfied the trial Court which had heard the witnesses and had examined, the documents. It however did not satisfy the lower appellate Court. But we have already pointed out that in many respects the lower appellate Court approached this question from a wrong standpoint and threw a very heavy bur-den on the defendant to establish the custom.
10. On our examining the instances, we have come to the conclusion that the view taken by the learned Munsif in this case was right and that his judgment should be accepted. We accordingly allow this appeal and setting aside the decree of the lower appellate Court restore the decree of the first Court and dismiss the' suit with costs in all Courts. We have refused to permit the defendant to produce the additional evidence consisting, of 18 more documents in this second appeal. The documents should be returned to the defendant.