1. Second Appeals Nos. 712 713, 714, 715 and 716 of 1921 all raise the same points. They have been argued together and can be decided in the same judgment. The plaintiff who is the appellant in all these appeals is a Muhammadan gentleman of Bareilly who is the zemindar of the village of Nathua Rampura. He asserts, as against certain tenants in the village, his right by immemorial custom to certain dues. The dues in question according to his allegations were payable in kind and varied in the case of the different tenants.
2. In Appeal No. 712 he claims that Rammon Brahmin was under an obligation to supply him annually with 100 cow-dung cakes of the value of 4 annas and a bundle of chaff of the value of Re. 1.
3. In Appeal No. 713 he claims that Jhunna Lal Brahmin was under an obligation to supply him annually with 200 cow-dung cakes of the value of Re. 1 and two bundles of chaff of the value of Rs. 2.
4. In Appeal No. 714 he claims that Raghu-nandan and Ram Sahai Brahmins were under an obligation to supply him annually with 100 cow-dung cakes of the value of 8 annas and a bundle of chaff of the value of Re. 1.
5. In Appeal No. 715 he claims that Pyare Lal Brahmin is under an obligation to supply him annually with 100 cow-dung cakes of the value of 4 annas and a bundle of chaff worth Re. 1.
6. In Appeal No. 716 he claims that Kadha Brahmin was under an obligation to supply him annually with 100 cow-dung cakes of the value of 8 annas and a bundle of chaff of the value of Re. 1.
7. It state these facts to show that the customary dues claimed were not claims per capita, and I am unable to understand why the demands varied amongst themselves. A here is no suggestion that they were in any way based upon the area of the tenant's holding or the amount of rent paid by him. It would almost appear that the demands were fixed arbitrarily. But in every case the claim is based on custom. There is no suggestion that it is based on contract. The plaints are very similar. They are to the effect that each defendant used to supply these cow-dung cakes and chaff over and above his rent; that the obligation was verified and admitted at the time of the settlement also, and that the said payment has all along been made according to custom. In the 3rd paragraph it is again stated that the right to claim these' articles is valid and recorded on the basis of custom. It suggests that the dues were given to compensate the zemindar for his generosity in permitting his tenants to carry out their necessary agricultural vocations in the village upon land in the inhabited area without payment of rent. It is necessary to emphasise at the beginning of this judgment that, the claim is based on custom and on nothing else. There is no suggestion that any individual defendant ever contracted to give these dues. The plaints continue that inasmuch as the defendant in each case has refused to carry out his obligations the plaintiff should, be awarded a money relief in, respect of the obligations evaded during the previous three years. The Trial Court arrived in all cases at the conclusion that a custom was proved and granted the plaintiff relief accordingly. The lower Appellate Court found that the suits were not maintainable and dismissed them accordingly. It did not arrive at a clear finding upon the question of custom. The plaintiff appeals here. The amount of money relief sought in each appeal is very small but the question of principle is of importance and it is necessary to go at some length into the various points which have to be decided in order to determine these appeals. The first question which arises is, are these suits maintainable? The last Settlement of this village took place in the year 1897, while the Land Revenue Act, XIX of 1873, was in force, and before the present Land Revenue Act, Local Act III of 1901, came into force. Under the sections relating to the Record of Rights the question of the recording of cesses is treated. Under Section 66 the Settlement Officer was ordered to record all the cesses payable by tenants on account of the occupation of land assessed to revenue and taken into account in such assessment, or which, in the case of land not assessed to revenue, would have been taken into such account had the land been assessed, or in lieu of which proprietary rights had been assigned under Section 56(b) and to consolidate the cesses with the amount payable by the tenants. The meaning of this provision is quite clear. There was to be no future separate record of such cesses. They were to be in eluded in the rent and to form part of the rent, and, in those circumstances, they would be recovered with the rent by suit in a Revenue Court. The remainder of Section 66 deals with other cesses, that is to say, with cesses unconnected with the occupation of land, and here a very stringent rule is laid down, that unless any such cess is recorded by the Settlement Officer and is generally or specially sanctioned by the, Local Government it shall not be enforced in any Civil or Revenue Court. The place of record is not stated but as the section is in the portion of the Act referring to the preparation of the Record of Rights (which includes the Wajib-ul-arz and the Dasturdehi) it is clear that the record if made by the Settlement Officer should be made in the Wajib-ul-arz or the Dasturdehi. But the mere entry in the Wajib-ul-arz or the Dasturdehi by the Settlement Officer would not be sufficient to legalise the cess, unless, in addition, the cess was generally or specially sanctioned by the Local Government. This is clear from the wording of the section and the principle has, in addition, been laid down in an old decision of this Court in Lala v. Hara Singh 2 A. 49 : 1 Ind. Dec. (N.S.) 576. The section continues that out of the income obtained from cesses not connected with the occupation of land the Local Government may direct expenditure to be made on public objects, such as the conservancy of a village or its watch and ward.
8. The word 'cess' as used in this section and as again used in Local Act III of 1901 is not an altogether suitable word to express the meaning of these provisions, for it clearly includes two distinct demands. The first is a demand by the zemindar for provision of certain articles or the doing of certain services, for his own personal benefit. When the word is used in this sense it is better to refer to the demand as a demand for dues and in these cases the dues demanded are customary dues. The word 'cess' is also used secondarily to denote demands for contributions in cash or kind to be devoted to the benefit of the village as a whole, and when used in that sense the word would almost mean a rate. In Dr. Agarwalla's Commentary on the present Land Revenue Act, 5th Edition, there is a very valuable discussion as to how the two classes of cesses originated. This discussion commences at page 147. For the decision of these appeals I need only refer to the broad division given in, Section 66. The first class of cesses are now recorded under Section 56 of the new Act; and the second class of cesses are now recorded under Section 86 of the new Act. It would appear that the lower Appellate Court has treated the claims in these suits as claims falling under the first part of Section 66 of the old Act and Section 56 of the present Act. On this view he was clearly right to dismiss the suits, for if these cesses were of that class they could only be considered if consolidated with the rent and not otherwise. But in appeal it has been pressed before me that the plaintiff is really claiming cesses o the nature of customary due such as fall under the second part of Section 66 of the old Act and Section 86 of the new Act. I am ready to consider the cases from that standpoint. A preliminary objection was taken by the respondents that no second appeals lay, as the suits were suits of a Small Cause Court nature for a relief of less than Rs. 500. I do not consider that that objection will prevail, as Clause 13 of the Second Schedule to Act IX of 1887 appears to cover the case. This is taking the view that the dues claimed are customary dues. Of course if the dues had been claimed as originating from a contract the objection would have prevailed.
9. In spite of the allegation in the plaints that these customary dues were payable in addition to the rent I agree with the learned Counsel for the appellant that they are clearly claimed as 'cesses' within the meaning of the second part of Section 66 of the old Act, and he is, therefore, obliged to establish that they were recorded by the Settlement Officer and generally or specially sanctioned by the Local Government. If he cannot establish these points the suits must fail, even if he can prove a customary right, as the provisions of Section 66 of the old Act and Section 86 of the new Act lay down that no such cesses can be enforced in any Civil or Revenue Court even if levied in accordance with village custom, unless they have been recorded by the Settlement Officer and generally or specially sanctioned by the Local Government. The decision in Lola v. Hira Singh 2 A. 49 : 1 Ind. Dec. (N.S.) 576 is clear on that point. And although it has been decided in Sisram v. Asghar Ali 16 Ind. Cas. 422 : 35 A. 19 : 10 A.L.J. 416 and Rangi Lal v. Jassa 35 Ind. Cas. 208 : 38 A. 286 : 14 A.L.J. 393 that, where there was a contract to pay such cesses and the right to collect was not based upon a custom, such cesses could be enforced, and in Sheoambar Ahir v. Collector of Azamgarh 14 Ind. Cas. 138 : 34 A. 358 : 9 A.L.J. 431 that a suit for a declaration by a tenant that he was not liable to pay cesses, even although his liability was recorded in the Wajib-ul-arz, was cognizable by a Civil Court there has never been any subsequent decision which has modified or overruled the decision in Lala v. Hira Singh 2 A. 49 : 1 Ind. Dec. (N.S.) 576. The decision in question lays down clearly and distinctly that a cess levied in accordance with village custom can only be recoverable if recorded by the Settlement Officer and generally or specially sanctioned by the Local Government.
10. The learned Counsel for the appellant has argued, however, that these conditions are fulfilled in the case of these particular claims, and he has referred me to an extract from the Jamabundi of the Settlement of 1897, which he asserts is a record of the custom in question. Now, it is to be noted that, as I read both the old Act and the new Act, if such a custom is recorded by the Settlement Officer it should be recorded in the Dasturdehi, which is the recognized record of customs. It is difficult to understand how the record of a custom could find place in the Jamabandi and the extract before me is an extract from the Jamabandi. The Jamanabai is a revenue paper which shows the current arrears, demands and collections from every tenant and sub-tenant from the village as well as demands and collections on account of siwai. The word siwai may be fairly translated as income from miscellaneous sources. An income from customary dues of manure and bhoosa would undoubtedly be siwai income. But the Jamabandi would, in no sense, record the right to obtain such income and even less would it be a record of a custom from which such right was derived. It would merely contain the account that so much had been collected in a particular year under a particular head. It would, at the most, afford proof that such income had been collected, but it could not by any possibility be considered to be the paper in which a Settlement Officer would record the existence of a customary cess in such manner as to bind the inhabitants of the village. And when this entry is examined, it is clear that the Settlement Officer thereby recorded as a fact that certain amounts had been collected under certain heads. He in no way recorded: that the Zemindar had a customary right to make the collections. The entry is somewhat peculiar. In the jamabandi, the amount of demands, collections and arrears should be entered against the name of each individual tenant. The paper might almost be considered as a ledger in respect of each tenant's liabilities and payments. But we find that no entry is recorded against the name of any tenant, and that it clearly means that, in that particular year, 1897, the zemindar had stated his annual collections from miscellaneous sources from all the tenants in the village in the figures which I now give. The heading is 'Items of siwai' and then follow the following items:
Rs. a. p.
For collections in respect of one
quarter of bamboos .. 7 8 0
Realisations in respect of bhoosa 3 0 0
' ' ' Cow-
dung .. 1 0 0
' ' ' Hides 2 0 0
Grazing Fees .. 1 0 0
Nazarana .. 8 0 0
11. It is to be noted that upon the basis of this record the zemindar is proceeding now to claim, when he had realised Re. 1 in respect of cow-dung from all the tenants in the village; 4 annas from one tenant; Re. 1 from the second; 8 annas from the third; 4 annas from the fourth; and 8 annas from the fifth, that is to say, 8 annas more than the paper, on which he relies, puts what he had collected from the whole village. It is also to be remembered that there are many tenants in this village and that the zemindar is only proceeding against five.
12. A similar calculation can be worked out in respect of the bhoosa. But it is abundantly clear that, whatever evidential value the entry in the Jamabandi might have, it in no way can be considered as a record of a custom by the Settlement Officer. And there is not the slightest evidence that there was any general or special sanction by the Local Government. The learned Counsel for the appellants argues that, as the Settlement was confirmed by the Local Government, the Local Government must be considered to have sanctioned every entry in the Settlement papers. The point is really of no importance, as on my finding there was nothing to sanction, but if the Local Government had adopted the course which is suggested, it would have been going against its own rules which had been clearly laid down as long ago as 1876 and which on the facts before me have never been altered. These will be found in the Circulars of the Board of Revenue of the 1890 Edition (the Circular in question, though not cancelled, has not been reprinted)--Circular (X) dated the 27th of April 1876--which lays down direct instructions as to the recording of the cesses under the latter part of Section 66, Land Revenue Act, and the words used are as follows: 'As to cesses under Clause 2, the Lieutenant-Governor is not disposed to give any general or special sanction at present. When expensive establishments are necessary under Clause 3 the Board can make special application for sanction of the cesses which it may be desirable to maintain basing it on the ground of the necessity of providing for the establishment but not on the expediency of maintaining any special class or classes of cess.' The meaning of this order is very clear The Act stated that it was open to the Settlement Officer to record the existence of a village custom permitting demands in respect of customary dues which were not payable directly on account of the occupation of land, but that, before those demands could become enforceable, it was necessary that they should be generally or specially sanctioned by the Local Government. And the concluding portion of the Circular says very clearly that in 1876 the Local Government laid down as a principle that it did not propose to recognize such cesses or to permit their enforcement, except in very special cases, when it was necessary for the benefit of the village to permit such cesses to be collected in the interests of conservancy, public safety or the like. There are, of course, many instances when the customary right to collect such cesses is recorded and sanctioned. A common case would be the case of weighing dues from which are met the conservancy charges of a market. But this Circular shows clearly that Government only intended to permit such cesses to be legalised as an exception, and, in these circumstances, the confirmation of a Settlement by the Local Government could not, in any way, be held to take the place of the sanction required by the Act. For the above reasons the appeals would fail. But I am ready to take a further point which I have been pressed to consider by the learned Counsel for the appellants. He argues that if he can prove a custom which would justify the collection of these cesses these appeals should succeed. I do not agree with him that these appeals should succeed even if he could prove such a custom. But it is desirable perhaps to decide the point as to whether any such custom exists. As I have already stated, the lower Court did not decide in so many words as to whether such a custom existed or not. I do not propose to send the case back for a finding of fact upon this point. I have sufficient materials before me to decide it and I propose to decide it under the provisions of Section 103, Code of Civil Procedure. The whole of the evidence to establish the custom is the enrty in the Jamabamti, to which I have referred, which cannot prove anything more than that sums aggregating Rs. 22-8-0 were collected as siwai in the year 1897. (One of the sums, Rs. 8, being on account of nazrana and another sum of Re. 1 being on account of grazing dues) the evidence of the patwari and a certain number of witnesses. The latter evidence goes no further than to show that the zemindar has in the past 20 or 30 years been receiving dues which were paid by certain tenants. But this evidence is absolutely insufficient to establish any thing of the nature of a custom. I am fully aware that it is not necessary in this Province to establish that a custom has been immemorial and I have considered the principles laid down in Gokul Dichit v. Maharaj Dichit 2 A.L.J. 790 : A.W.N (1905) 266 and in previous cases. But after hearing and going through all the above decisions I am satisfied that, applying the most liberal interpretation as to what is necessary to establish the existence of a custom in this Province, the evidence falls ludicrously short of the evidence that would be required to establish such a custom. I am not even certain that the witnesses are honest. It unfortunately is very easy for pressure to be put upon tenants to come forward and depose to the existence of a custom in favour of the zemindar. I do not say that that has been done here, but I am not satisfied with the quality of the evidence. And even if I were satisfied with the quality, which I am not, there is not sufficient evidence to establish a custom. This concludes the matter. I dismiss the appeals in question with costs.