1. The suit out of which this appeal arises has been instituted by a Zemindar in the Azamgarh District against certain riaya on the allegation that they have appropriated the wood of a free which was standing upon land of which they were in occupation after the tree had fallen down. She asserted that under a custom of the village, she, as Zemindar, was entitled to half the value of all fallen timber, and she instituted a suit for small damages and for an injunction prohibiting the defendants from questioning her rights in such matters in future.
2. The defendants admitted that they were riaya; they admitted that the tree stood upon land of which they were in occupation; they admitted that the tree had fallen down and that they had appropriated it but they denied the existence of any custom entitling the plaintiff to half its value.
3. The Trial Court found that such a custom did exist and decreed the suit. The lower Appellate Court found that no such custom existed. The Zemindar appeals here.
4. It has been laid down by a Full Bench of this Court in Ram, Bilas v. Lal Bahadur 30 A. 311 : 5 A. L. J. 456; A. W. N. (1908) 12 : 4 M. L. T. 169 (F. B.), that where a question arises as to the existence or non-existence of a particular custom, and the lower Appellate Court has acted upon illegal evidence or on evidence legally insufficient to establish an alleged custom, the question is one of law, and the High Court is entitled in second appeal to consider whether the finding is based on sufficient evidence. It was further held by Bench in Rao Girraj Singh v. Hargobind Sahai 4 Ind. Cas. 304 : 32 A. 125 : 7 A. L. J. 36, that a High Court in second appeal has jurisdiction to consider the evidence given in support of an alleged custom and to determine whether or not that evidence is sufficient in point of law to establish the custom set up. But it appears, on reading the judgment of the Bench in question, that the learned Judges did not intend to go beyond what was laid down in the Full Bench decision. It is to be noted that the view taken by the Full Bench was that it is open in second appeal to go into the question of law as to whether the evidence which the lower Appellate Court found sufficient to establish a custom was adequate for the purpose; but neither of those decisions laid down that where a lower Appellate Court found that the evidence was insufficient to establish a custom, a point of law arose in second appeal that it was in fact sufficient. And it would appear to me that where the lower Appellate Court, after examining the evidence legally and properly and not having rejected admissible evidence, finds that the evidence is not sufficient to establish a custom, no question of law can arise. This view appears to be borne out by the decision of their Lordships of the Privy Council in Muhammad Kamil v. Imtiaz Fatima 4 Ind Cas. 47 : 31 A. 557 : 10 C. L. J. 297 : 11 Bom. L. R. 1210: 14 C. W. N. 59 : 19 M. L. T. 697 : 13 O. C. 183 : 36 I. A. 210 P. C. At page 570 Page of 31 A.---[Ed.] they say:
The judgment of the first Court in this case decided that the rights of the parties were governed by the Muhammadan Law, and not by family custom, as had been alleged, and this was affirmed on appeal. The existence of such a custom is a question of fact, and as to this question the Courts in India concurred in their judgment.
5. In a somewhat similar case to the present, a Bench of this Court decided in Baru Mal v. Tansukh Rai 29 Ind. Cas. 1001 : 13 A. L. J.717 : 37 A. 524, that where a lower Appellate Court refused to find upon an entry in a wajib-ul-arz and the evidence of two decrees that a custom of pre emption existed in a certain village, the finding that no custom existed was a ending of fact binding upon a Court in second appeal.
6. The question as to how far a decision that a given state of facts does not or does establish a binding custom or usage, is a question of fact or law was diseased very thoroughly by Mookerjee, J., in the case of Kailas Chandra Dutta v Padma Kishore Roy (5) 41 Ind. Cas. 959: 21 C. W. N. 972 : 25 C. L. J. 613 : 45 C. 285. The view taken by that learned Judge supports my conclusion. The question of the existence of an alleged custom is generally a question of fact, but it is conceivable that the decision may involve an error of law so as to justify the interference of the High Court in second appeal. Undoubtedly the High Court could consider whether irrelevant evidence had been received or relevant evidence had been excluded or Whether a custom was found to exist on legally insufficient evidence or whether legal principles or tests had been erroneously applied, Court has done here, has not rejected admissible evidence, has applied its mind correctly as to what the essentials of a custom are and at the end has found that it is not satisfied on the evidence produced that such a custom exists, it appears to me that there is no point of law which an be taken in second appeal. If it had been opened me to decide the question as res integra, I should not have taken a view different from the view taken by the lower Appellate Court. It appears that m the Settlement of 1826 no such custom was recorded, that in 1872 the existence of the custom was recorded in the wajib-ul arz by the Settlement Officer; but it is to be noted that he added that the villagers in many instances denied that any such custom existed and subsequently there have been a few instances in which the existence of such a eastern has been recognised. A suit by certain tenants for a declaration that no such custom existed was dismissed not on the merits but owing to a misjoinder of parties. One question remains. Were the defendants restrained on the principle of res indicata, from advancing their present defense? This mush is clear. They are members of a joint Hindu family. Their father was sued by the plaintiff a few years ago for damages for having appropriated certain trees and out down others. The suit failed in respect of the greater part of the reliefs sought bat it was found that he had appropriated one tree which had fallen down and as against him it was held that the custom which it was now sought to establish did exist and he was directed to pay half the value of the wood as damages. That suit, however, was a suit for damages pure and simple. If the cause of action had arisen within the jurisdiction of a Court having Small Cause Court powers the suit would have lain in a Small Cause Court. It was a suit of a Small Cause Court nature. It was heard by a Munsif in the absence of an officer with Small Cause Court powers as a regular suit. But it remained a suit of a Small Gauge Court nature to which the provisions of Section 102 of the Code of Civil Procedure applied as the subject matter was less than Rs. 500, The present suit is not a suit of a Small Cause Court nature, for it includes a plea for a mandatory injunction. I am inclined to think that, in these circumstances the previous judgment does not operate as res judicata as the Munsif in his capacity of an officer hearing a suit of a Small Cause Court nature was not competent to try the present suit. It is true that, apart from his capacity as an officer trying suits of a Small Cause Court nature, he was competent to try the present suit but the combination of two functions in the same officer does not affect the question of competency. In many cases, Subordinate Judges who have, as Subordinate Judges, practically unlimited powers in the decision of suits, are also Small Cause Court Judges. Apart from the question that the previous suit was against the father of the defendants, from which both the Courts below argue that inasmuch as he did not represent the family in that suit, the family being joint, this would seem to me sufficient reason for not considering the defendants stopped in their defence by a plea of res judicata.
7. For the above reasons, I dismiss this appeal. The appellant will pay her own costs and those of the respondents.