1. These are five Letters Patent appeals by various Mahomedan Julahas, defendants, residing in the village of Sheopur alias Saidraja in the district of Benares against the judgment of a learned single Judge of this Court in favour of the claim of the plaintiff zamindars of that village to enforce against the defendants certain payments alleged to be customary. The plaint sets forth that from of old it has been a custom in the said village that zamindari dues at Marwana, Holi, Dasehra, etc. have all along been paid by the inhabitants of particular castes on whom the dues were imposed according to their means; and that for example the defendant Jangi is liable to pay to the zamindars Re. 1 at Holi and one-fourth of a seer of supari nuts of the value of four annas at Dasehra. and other dues on marriages. The suit was brought to enforce the dues at Holi and Dasehra. The written statement pleaded that there was no such custom in the village in question and that the claim of the plaintiffs was not a legal claim which the plaintiffs could enforce. Both parties gave evidence, and the defendants alleged that they had not made any payment to the zamindars, and they stated that in the time of their forefathers they were excused from making subscriptions. The plaintiffs on the other hand, brought a considerable amount of oral evidence to the effect that the plaintiff did receive payments from both Hindus and Mahomedans at the time of Holi and Dasehra. The Court of first instance found that the custom was proved, although it came to a finding to the following effect:
It may be a fact that in its inception the Holi cess would have commenced in the shape of subscription, but now it is ripened into a custom.
2. The lower appellate Court found:
I agree with the conclusion of the lower Court that the custom originated in ordinary subscription;
and that Court went on to state that
it would thus appear that the Holi due is an arbitrary one depending on the whim of the zamindar. His karinda admits that he does not know how much each Naddaf pays. Again with regard to the Dasehra the amount of supari demanded varies from half a pao to two paos.
3. It then went on to state that a custom must be certain and definite as laid down in Lachhman Rai v. Akbar Khan  1 All. 440 and that the evidence in the present case failed to satisfy that criterion, and therefore the suit of the plaintiffs failed. In second appeal the learned single Judge of this Court has reversed the finding of the District Judge on the ground that his finding was one which it was not open to him to make, because he made a new case for the defence on the pleadings, and that the District Judge had entirely failed to appreciate the true character of the custom set up and proved. The learned single Judge considered that it was open to the zamindars to assess the amount of customary dues according to the means of the tenants, and this would not mean that the custom was uncertain. We consider that this view is not correct, because a custom, although it might vary in the case of different tenants, should be a custom to pay an amount calculated on some fixed basis, that is it should be a payment of so much in proportion to the produce of these weavers or on some other fixed basis. But there is nothing on the record which shows that the amounts are fixed on any other basis except what the zamindars think they can extract from the inhabitants of the village.
4. Further, as it has been found by the lower appellate Court that the origin of these payments was voluntary subscription, it follows that it is necessary for the plaintiffs to prove that at some period of time the plaintiffs began to enforce this subscription and that it became no longer voluntary. There does not appear to be any evidence of enforcement of these payments prior to the year 1916 eight years before the present suit. In the year the zamindars brought two suits for the enforcement of these payments and the suits were not decided on the issue whether there was a custom in existence. The only other documentary evidence of an earlier date to which reference has been made is the wajibularz of the year 1847 and the wajibularz of the year 1883 There is a clause in each of these wajibularaiz to the effect that whatever custom or usages such as shadiana, etc., have been prevalent for a long time would continue. There is no reference at all to payments at Holi or payments at Dasehra. Accordingly it cannot be said that these wajibularaiz afford evidence of the existence of customs alleged in the plaint at the dates in question. We consider that the finding of the lower appellate Court was one which was justified by the evidence on the record and accordingly we allow these five Letters Patent appeals and dismiss the suits of the plaintiffs with costs in all Courts.