1. This is a defendant's appeal arising out of a suit for recovery of a sum of money claimed as haq chacharam payable on the sale of a house situated in Patti Kasho Das, mahal Pirthipal Singh, in the village of Kashipur within the municipal limits of the city of Benaras. The plaintiff alleged that there was a custom in existence under which all houses situated on parjaut lands were liable to the payment of such dues. The defendant vendee denied the existence of any such custom and also denied that the land on which the house was situated was parjaut land. The Court of first instance came to the conclusion that the site was not parjaut land at all and that no parjaut had over been paid in respect of it. It also came to the conclusion that the evidence produced by the plaintiff was totally insufficient to prove the existence of any such custom in this particular mahal. On appeal the learned District Judge has reversed both the findings of the Court of first instance and come to the conclusion that the site is parjaut land and that the custom of haq chacharam is established. In the course of his finding on the question of custom he has also noted that the respondent defendant's pleaders have in arguments conceded the point and admitted that the finding of the lower Court against the existence of the custom is wrong. As regards the question whether the land is or is not parjaut land we are of opinion that the finding of the learned District Judge is a finding of fact and cannot be challenged in second appeal. The learned Judge had before him the jamabandi of the year 1883 in which this was clearly recorded as parjaut land on which Re. 1-8-0 parjaut was payable. There was a further fact that in the sale deed executed by the defendant vendor in his favour there was a clear recital that it was parjaut land liable to the payment of Re. 1-8-0. There also appears to have been some oral evidence, e.g. that of the patwari. It is true that the learned District Judge when referring to the jamabandi has said that the Court of first instance's view that it was not properly 'attested' was pot intelligible. Apparently the two Courts have taken the word to mean two different things. What the Court of first instance had meant was that the document had not been witnessed by the tenants and raiyats, whereas the learned Judge thought that it had been duly prepared by the Settlement Officer. In any case an entry in the jumabandi was admissible and was certainly of great value. The learned Judge had before him evidence on which he could come to a finding as to whether the land was parjaut land or not. His finding is a finding of fact and is binding on us.
2. On the question of custom although there is a finding that its existence is established and although there is a remark that the learned pleaders for the defendant conceded in argument the point that the findings of the lower Court was wrong we have allowed the learned advocate for the appellant to show us that the evidence as regards the existence of the alleged custom was really legally insufficient. The plaintiff produced several pieces of evidence in support of the alleged custom. In the first place we have the helat dehi which was prepared in the year 1883 in which there is a clear recital that zamindars of the mahal get a quarter share in the price on sales of miscellaneous trees standing on land without rent, groves and houses. It has been strongly urged that the helat dehi is of no value at all because it is not the wajib-ul-arz and therefore it cannot justify any presumption that it contains a record of a custom. We may note that the district of Benares is a permanently settled district and that there was no Regular Settlement in 1883, but there was a revision of settlement in that year, and in substitution for a proper wajib-ul-arz the helat dehi was prepared. The Settlement Officer in his Report on the Survey and Revision of Records of the Benares District (1887) at page 13 has remarked that the helat dehi was prepared by way of a substitute for the old wajib-ul-arz as recommended by the Committee in 1883. The paper contains mention of the methods by which instalments of Government revenue are paid, rents collected, cesses realised, and other matters of local interest such as rights of irrigation et cetera. It is also a memorandum of existing customs ascertained by Settlement officials during the course of the Settlement operation. It is clear, therefore, that an entry in such a record that haq chacharam was realized on sales of houses is of considerable importance.
3. In addition to this helat dehi, the plaintiff has produced a number of judgments and decrees showing that such a custom was upheld by Courts with regard to the sales of houses situated in village Kashipur. Ex. 3 and 13 are a decree and judgment in a case of 1873 with regard to a house in Mahal Kashipur. The learned Subordinate Judge has conceded that this mahal is situated in village Kashipur. Exhibit 4 is a decree of 1894 relating to Mahal Kabir Chaura which also is a part of the village of Kashipur. Ex. 5 and 12 are copies of a judgment and decree with regard to the right of haq chacharam in village Kashipur. They are of the year 1890. The mere fact that the vendor in that case had confessed judgment and the vendee allowed the case to be decreed without contest, does not establish that the judgment is of no weight. If the existence of a, custom is well-known the vendor and the vendee may very well not think it worth their while to contest the case. Then there is a decree of 1887 relating to mahal Kashipur. The learned Advocate for the appellant has strongly contended that, leaving aside the helat dehi, all these judgments do not prove the custom because it may very well be that a custom exists in certain mahals but not in the mahal Pirthipal Singh in which the house is situated. But there it is not shown that in any case the Court has ever held that the custom does not exist in any part of village Kashipur; on the other hand it is established that such a custom exists in certain mahals of village Kashipur and it is further established that as regards helat dehi prepared for mahal Pirthipal Singh there is an express mention of such a custom, the conclusion is irresistible. There is a further fact that in the sale deed in favour of the defendant vendee there is a recital that the vendor has not paid any haq chacharam and will not be liable to pay it. That cannot amount to an admission on the part of the vendor that the right to collect haq chacharam does exist, but it does certainly appear that he was aware that it was likely that a claim may be made and he wanted to make his position clear that he was not liable. Having regard to these pieces of evidence we are of opinion that there was legally sufficient evidence before the lower appellate Court on which it could come to the conclusion that the custom had been established.
4. The finding that the custom exists must, therefore, be accepted. The result therefore, is that this appeal accordingly fails and is dismissed with costs including in this Court fees on the higher scale.