1. This appeal and the connected appeal Nos. 1247 and 1248 of 1922, are concerned with only one question, namely, whether the evidence that was adduced in the Court of first instance by 'the appellants should have been held to be sufficient to prove the custom set up by the appellants, namely, one in the village of Datiana, by which a ryot could transfer not only the materials of his house but also the site over which the house stood.
2. The case has been ably argued on both sides. Mr. Agha Haidar, has taken a preliminary objection to the hearing of the appeal. He argued, on the authority of a sentence to be found in the case of Muarmmad Kamil v. Imtias Fatima 4 Ind. Cas. 457 : 31 A. 557 : 10 C.L.J. 29 : 11 Bom. L.R. 1210 : 14 C.W.N. 59 : 19 M.L.J. 697 : 13 O.C. 183 : 36 I.A. 210 (P.C.), that a question of custom was a question of fact and this Court could not go into it in second appeal. It appears that in the case before their Lordships of the Privy Council a custom had been set up and had been negative by both the Courts in India. It is a practice with the Privy Council not to allow a question of fact to be re-opened on which the Courts in India have agreed to pronounce the same opinion: It was with respect to such a matter that their Lordships remarked that they would not go into the question of custom. The question did no arise with reference to Section 100 of the Civil Procedure Code with which I have to deal in this case. A regular string of authorities in this Court has held that it is always open to the High Court in second appeal to see whether an opinion on custom which has been pronounced was based or not on sufficient evidence. The case of Bam Bilas v. Lai Bahadur 30 A. 311 : A.W.N. (1908) 112 : 15 A.L.J. 456 : 4 M.L.T. 169.distinctly held this. There are subsequent cases too and one of them is that of Faiyaz Ali v. Bekhab Das 61 Ind. Cas. 24 : 19 A.L.J. 104. I, therefore, overrule the preliminary objection and allow the appeals, to be argued on the merits.
2. To begin with, the village in question has been found by the lower Appellate Court to be a purely agricultural village. On this point nothing has been addressed to me to indicate that this was not a correct finding. Indeed, this finding has not been challenged in the memorandum of appeal. I have ascertained with reference to the Census statistics of the last Census of 1921 that Datiana has a population of 2,499 souls. Evidently there is a very large population of ryots in the village as all these 2,500 souls could not be the proprietors. When a question of custom arises, one in the first instance likes to look into the wajib-ul-arz to see whether it has anything to say or not on it. The wajib-ul-arses in the present case are two in number, namely, one prepared in 1873 and the other in 1863. The wajib-ul-arz of 1863 in para. 14 clearly lays down that the adadi or the village site is the property of the zemindars alone. It shows that when a ryot comas to live in the village he has to pay a present (Rasum). When he goes away he can take away the materials provided these have no been supplied to him by the landlord. The wajib-ul-arz of 1873 does not specifically say anything on the position of the ryots but it declares that they render such service as their caste would permit.
3. t It has been urged that these wajib-ul-arze & are really the handiwork of the zemindars and that here is no binding authority on the ryots. This is, however, not a correct view of the matter. They are supposed to have been prepared by authorities who are anxious to note down all the customs prevailing in the village.
4. It is conceded that the names of the ryots are not to be found in the khewats. The ryots are certainly not proprietors of an inch of the soil of the village. There was a partition in the village in 1895, and, as would be expected, the ryots were no party to that partition. The question then is whether, in the circumstances of this particular case, the appellants have succeeded in proving that there is such a custom in the village by which they are entitled to sell the property of another set of persons, namely, the zemindars. There can be no doubt that there have been oases in which the existence of such a custom has been recognized; but such a custom can be recognized only when there is absolutely clear evidence to that effect.
5. As I have said, there was a partition in the village in 1895 and the village was divided up. All co-sharers would not be as careful to guard their rights as some of them. Some may be neglectful and others may be on their guard. If some of the co-sharers have neglected to take steps to avoid transfers made by people who are nothing but ryots in the village, their laches cannot affect, the rights of the other co-sharers in the village. These are matters which must be borne in mind before we examine the evidence in this connection. The remarks of Stanley, C. J., in the Full Bench case of Bam Bilas v. Lal Bahadur are very instructive. A man may say, ' well in such and such cases I have been neglectful of my rights but why should I not keep an eye over my rights in future. ' That is exactly an attitude which may be lawfully taken by the co-sharers of the village.
6. In this case there are 36 sale-deeds. Forty-six were produced but 10 of these were not proved. Twenty out of these 46 related to transfers which took place within 12 years of the suit. Thus, they were transfers of recent times and transfers which could yet be impeached and the transferees ejected by the landlords. Who knows but the present three cases may be brought in respect of the other Cases Out of the 46 cases of sale, 15 were made by persons who were either zemindars or muafidars in the village. Thus, we are left with only, as the learned Subordinate Judge has remarked, 11 sales, which are more than 12 years' old.
8. I have already remarked that the village is a very large one. It has a population of about 2,500 souls. Which among these ryots have been transferring their house, is' a matter, which would not always come to the knowledge of the landlords. The learned Munsif got prepared a statement in a tabulated form as to how these sale-deeds stood. He found that in 10 cases the sale-deeds affected the property of absentee landlords. This may account for some of the sales. Now, the question remains whether these 11 sale-deeds which undoubtedly relate to transfers made more than 12 years before the institution of the present suits should be taken as sufficient evidence to establish a custom in the village in question. Having regard to the largeness of numbers of the ryots, I am clearly of opinion that these instances are wholly inadequate. Mr. Aziz who has taken great pains over these oases has pointed out to me that in several of the cases some of the co-sharers attested the sale-deeds. Now this attestation does not Accessorily signify that the attesting co-sharers believed that the ryots had, under a custom, the authority to transfer zemindars property, namely, the sites of the house. On the other hand, that attestation may show and probably does show that, the purchaser was anxious to have the consent of the landlord so that in future trouble might be avoided. If the village had been small and if there had been 11 ancient sales something might be said as to the sufficiency of this evidence. But where there are about 2,500 ryots, 11 ancient sales will not establish a custom, which is supposed to take away another man's property. As I have already said, if a man has been neglectful of his rights in certain cases that does not mean that he should be compelled to forego his remaining property. There are two judgments but none of these judgments show that any custom of transfer of the sites of the houses by ryots was recognised by them. The sale certificate and the Dakhalnama only prove that a ryot made a mortgage and his property was sold.
8. Two learned Judges of the Courts below in thoroughly painstaking judgments have discredited the custom and my reading of the evidence leads me only to support their opinion. I hold that the evidence adduced in the circumstances was not sufficient to establish the custom contended for.
The appeal fails and is dismissed with costs.