1. The plaintiff zemindar sued for the recovery of Re. 1 as a customary due (Bau) on the marriage of the daughter of the defendant. The custom of such payment by Gaderiyas, Lodhas and washerman was, according to the plaint, recorded in the first wajib-ul-arz prepared under the direction of Mr. Currie. The defendant is a Lodh, and was, therefore, liable to pay. la the written statement the custom was not admitted. The frame of para. 1 of the additional pleas of the written statement would seem to accept the existence of such custom in other villages, but it was pleaded that such custom did not obtain in the village in suit Mauza Baghthari. In the second paragraph it was contended that the record was one of contract, and not of custom. As rightly pointed out by the trial Court which decreed the suit, there was no allegation whatsoever in the written statement that the custom which once existed had fallen into disuse. The learned Judge of the lower Appellate Court has fallen into a mistake of making out a new defence and holding that the custom recorded in the wajib-ul-arz had fallen into disuse. In this Court the opinion supported as it is by the opinion of the Privy Council is so strong as to the record of a wajib-ul-arz being one of custom that no serious argument was ad vanced by the learned Counsel for the defendant, to make out that the record in Mr. Currie's wajib-ul-arz was one of contract. In Digambar Singh v. Ahmed Sayecd Khan 28 Ind. Cas. 34 : 37 A. 129 : 13 A.L.J. 236 : 19 C.W.N. 393 : 17 M.L.T. 193 : 2 L.W. 303 : 21 C.L.J. 237 : 28 M.L.J. 556 : 17 Bom.L.R. 393 : (1915) M.W.N. 581 : 42 I.A. 10 : 3 T.A. 129 (P.C.) their Lordships of the Privy Council held that a wajib-ul-ars was by itself good prima facie evidence of a custom of pre-emption stated in it without corroboration by evidence of instances in which the custom has been enforced. They conceded that, the evidence as to a custom of pre-emption recorded in a wajib-ulars may be rebutted by other evidence. They also pointed out with reference to a subsequent partition that it did not follow as a matter of law or principle that the custom or contract in force before partition was no longer to have effect or operation. Such a view has been consistently held by this Court since 1893, when the case of Sadhu Sahu v. Raja Ram 16 A. 40 : A.W.N. (1893) 200 was decided by a majority of Judges of the Full Bench. It was held in that case that an entry in a wajib-ul-arz was a record of custom. And further that the absence of any entry of such custom in subsequent Records of Rights did not raise a presumption that the custom had ceased to exist; nor was it any evidence to that effect. This view was followed by another Full Bench in the case of Ali Naseer Khan v. Manikchand 25 A. 90 : A.W.N. (1907) 207.
2. Thus in the present case to start with we have a record of custom at the time of the First Settlement, and it must be held that such a custom did exist at that time. The omission of the mention of such custom in subsequent Records of Rights was no evidence of the disuse of the custom. The question remains whether such custom had been abrogated. The defence evidence wag of an exceedingly trivial character consisting of the testimony of only two witnesses, one, a Muhammadan, and the other a Lodh. This evidence was rightly disbelieved by the trial Court who had the advantage of listening to those witnesses. Above all it was not the case for the defence, as rightly pointed out by the trial Court and not noticed by the lower Appellate Court, that a custom existed and had fallen into disuse. The finding of the lower Appellate Court as to disuse is entirely perverse and passed on omission to notice the defence of the defendant. I hold that the custom has not fallen into disuse.
3. I set aside the decree of the lower Appellate Court, and restore the decree of the trial Court and decree the plaintiff's suit with costs of all the Courts.