1. This is a defendants' appeal in a suit to recover haq-i-chaharum. A preliminary objection has been raised by the respondent that as the amount of the claim is below Rs. 500, the suit was a suit of the nature of small causes. I have repelled the contention as I am of opinion that the case is not of a nature cognizable by the Court of Small Causes.
2. The plaintiff Came into Court on the allegation that he was the zemindar and owner of the site of the house purchased by the defendant, which is in Mohalla Man Sarobar in the city of Benares, that the Defendant No. 2 sold his right as a parjautdar to Defendant No. land that in Mohalla Man Sarobar in the city of Benares there is a custom in vogue that at the time of transferring a house or rights as a parjautdar, the zemindar gets one-fourth of the sale consideration.' and both the vendor and the vendee are liable for the payment of this amount, which is called zar-i-chaharum. The defence to the action is as set up by the defendant who admits that she is the parjautdar of the site on which the house stands, that no custom or zar-i-chaharum is in vogue in Mauza Bhadani, Mahal Sonarpura or Man Sarobar in the city of Benares. Both the lower Courts have held that the plaintiff, upon the evidence, has proved that there was a custom of haq-i-chaharum in Mohalla Man Sarobar. In appeal it is contended by the learned Advocate for the appellant that this custom of haq-i-chaharum is an unreasonable custom and cuts down the right of ownership, and whether-the area is large or small, it diminishes the general value of land in Benares.
3. I am of opinion that it is impossible to lay down any general rule as to whether a custom is such that no Court would recognize it. Dr. Katju for the appellant has laid all the documents before me, and has submitted that if I was sitting as a Court of Appeal, I would never hold that the custom had been proved. It is impossible in second appeal to treat a question of custom as a question of fact. In the case of Rup Chand v. Jambu Parsad  32 All. 247, their Lordships of the Privy Council had a question of custom among Jains before them, and at page 252 (32A) their Lordships say:
The question in the present case was, and is whether a Custom, applicable to the parties concerned, and authorizing the adoption of a married boy, has been established. This is, strictly speaking a pure, question of fact determinable upon the evidence given in the case.
4. I must, therefore, treat this question as a question of fact. Dr. Katju then goes on to argue that as was held in the Full Bench case of Ram Bilas v. Lal Bahadur  30 All. 311 I am entitled to consider whether the evidence on the record was legally insufficient to establish an alleged custom. This, I think, I am entitled to do, because if the evidence is legally insufficient to establish a custom, it be comes purely a question of law.
5. The question raised in the written statement, namely, that there is no custom of haq-i-chaharum in Mahal Bhadani of which Sonarpura is a part, and of which Man Sarobar is a smaller part but the defendant has introduced into the case a number of instances of the exercise of the right of receiving haq-i-chaharum by the zemindar. Really the case ought to be strictly confined to the allegation of the plaintiff, that in Mohalla Man Sarobar there is or is not a custom as alleged by the plaintiff. The history of this particular piece of land on which the house has been built is that the original grant, which was made, did contain a stipulation that when the parjautdar parted with the house and the land, the zamindar would be entitled to one-fourth of the sale consideration. These two documents have been specifically referred to in the judgment of the Munsif. They are kabuliyats dated 5th July 1884, and 29th November 1898. The latter kabuliyat uses the expression 'hasb dastur mohalla.' There is nothing on the record to show how many houses there are in the mohalla called Man Sarobar, which is admittedly a very small mohalla in Mohalla Sonarpura in the city of Benares. Documents have been filed by the defendant to show that in 1878 the predecessor-in-title of the plaintiff claimed haq-i-chaharum, at the time when a house in this mohalla was sold, but the plaintiff failed to prove that a custom did exist in this mohalla.
6. It is also urged by. Dr. Katju that among the list of documents filed by the plaintiff, he has only filed decrees which show that he did receive one-fourth of the sale consideration, but the decrees do not show whether in each case there was a contest, and whether the claim was based on a contract or custom. This, no doubt, is correct, and the instances cited by the plaintiff are, therefore, of no value. As I confined the plaintiff to refer me to instances relating only to Man Sarobar, Sir Tej Bahadur Sapru has pointed out evidence of the exercise of the right to receive haq-i-chaharum in six cases beginning from 1896 to 1918.
7. The last is not to my mind of any value but in the absence of any evidence as to the number of transfers after 1878 and the fact that ever since, as alleged by the plaintiff of his acquiring ownership of this mohalla he has exercised the right of receiving haq-i-chaharum, it is impossible for me to hold that the evidence is legally insufficient to prove the custom which has been held proved by both the Courts below. Whether sitting as a Judge of facts I would have come to the conclusion that the custom alleged has been proved, is a different matter. A number of cases were cited before me where the right of pre-emption has been held to have arisen in 20, 80 or 40 years, but each case must depend on the circumstances of that case.
8. I am, therefore, of opinion that there is no force in the defendant's appeal. I dismiss it with costs including fees on the higher scale.