1. The principles with reference to the rights of a tenant holding on a permanent tenure lands in Zemindaries have been elaborately considered in. Narayana Ayyangar v. R.G. Orr I.L.R(1902) .M. 252 which was decided after this case was disposed of in the lower Court. The previous decisions of this Court in Appa Rau v. Ratnam I.L.R(1889) M. 249 and in Appa Rau v. Narasanna I.L.R(1891) M. 49 relied on by the Acting District Judge are referred to and explained in the above recent decision. According to it a ryot holding land in a Zemindari on a permanent tenure would, as regards land on which money assessment is paid, be prima facie entitled to the trees therein exclusively. In regard to lands as to which the sharing of crops between the Zemindar and ryot prevails, the Zemindar and the ryot would be jointly interested in the trees standing thereon; but presumptions to the above effect are liable to be rebutted by proof of usage or contract to the contrary. In the present case, the Zemindar pleaded that he had been customarily enjoying the trees in his Zemindari even though standing on lands held by ryot's and evidence as to such enjoyment was offered, but no issue was raised as to the custom of the Zemindari, and the judgments of the lower Courts do not discuss the matter with reference to the custom alleged. Considering the importance of this question as. bearing upon disputes between the Zemindar and his ryots generally, we think there ought to be a direct and distinct finding upon the matter. It should be added that even in the absence of a custom it may be shown with reference to the trees on the plaintiff's holding that he has no right to them under contract, if any, between him and the Zemindar. We must, therefore, call upon the District Judge for a finding upon the question whether the defendant - the Zemindar - is entitled to the trees in dispute either by virtue of a custom of the Zemindari or contract between the parties.
2. The District Judge returned a finding that the Zemindars had failed to establish the custom he set up and that he had no right to the trees in dispute.
3. The question for determination is as to the alleged right stated to be founded on local custom, of the respondent, the Zemindar, to trees on land held by persons on the usual permanent ryotwary tenure in his Zemindari of Myla-varam in the Kistna District. The finding of the District Judge is that no such custom as that set up has been established.
4. The preliminary point which has been raised is whether it is competent for us to examine the evidence with reference to which the finding of the District Judge was given, the matter being before us on Second Appeal.
5. Mr. Krishnaswami Aiyar for the appellant contended that the finding though one as to an alleged local custom, is still a finding as to a matter of fact and, consequently, it was binding upon us and not liable to be revised by us with reference to the weight to be given to the evidence adduced. The cases relied on by him viz., Hureehur Mookherji v. Judoonath Ghose (1868) 10 W.R. 153, Syud Ali v. Gopal Doss (1870) 13 W.R 421 , Hurry Churn Doss v. Nimai Ghand Keyal I.L.R.(1883) C. 138, Bai Bkirinbai v. Kharshedji I.L.R.(1896) B. 430, and Second Appeal No. 773 of 1881 decided by this Court, support his contention, but they are not reconcilable with the decisions of this Court in Hanumantamma v. Rami Reddy I.L.R.(1881) M. 272, Mirabibi v. Vellayanna I.L.R.(1885) M. 464 and Eranjoli Vishnu Nambudri v. Eranjoli Krishnan Nambudri I.L.R.(1883) M. 3, the last of which was decided by a Full Bench. In these three cases the learned judges who took part in them went into and discussed the evidence and arrived as the result of such examination at conclusions in regard to the usages then in question, in Second Appeal. No doubt, in doing so, the competency of the Court so to examine the evidence and decide with reference to its weight was merely assumed. In our opinion that cannot be taken as detracting in the slightest degree from the authority of those decisions in reference to the present point.
6. For it is impossible to believe that the learned Judges who decided them overlooked so obvious an objection, as it must have been, if Mr. Krishnaswami Aiyar's contention were right. It seems to us also that were the question res-integra we cannot but held that the contention is untenable. The decisions opposed to our view would have been correct had the provision of the Civil Procedure Code conferring the right of Second Appeal not contained the clause 'or usage having the force of law'; for then the words 'the decree being contrary to law' by implication would exclude an appeal on the ground that any question or questions of fact raised in the case and, affecting its decision was or were wrongly determined by the lower courts, and, in such a state of things, it might have been arguable that a finding by the lower courts as to the existence or non-existence of a local or special usage which had to be proved by evidence was a finding as to a matter of fast, on the analogy of the view held in England that such matters are for the jury and not for the Judge. But the presence in Section 584 of the Code of 'or usage having the force of law' makes such an argument irrelevant. This language is so explicit as to render superfluous the seeking for the reason of the provision though that is not difficult to discover, viz., that a usage of the kind mentioned, being in its nature such as must necessarily affect not only parties to the particular litigation and their privies but whole bodies of people, stands on a footing similar to a matter of law derived from other sources than usage. The very limited scope which is allowed to usages in England, due to special historical causes (see Pollock and Maitland's History of English Law, 1st Edition, Vol. I, p. 163), accounts for questions as to their existence being treated as falling under the category of questions for the jury. Of course, it is otherwise in this country where from the days of Manu it has be enlaid down that 'custom is transcendent law.' It is clear, therefore, both upon authority which is binding upon us as the opinion of a Full Bench and has the right interpretation of the provision in question of Section 584 of the Civil Procedure Code, that, though the section disallows a Second Appeal with reference to findings of fact, yet, the existence or non-existence of a usage having the force of law is unaffected by such disallowance. Consequently, it is the duty of this Court, when it has to pronounce upon that question, to examine the evidence bearing upon it, not only as to the sufficiency thereof to establish all the elements (antiquity, uniformity, & c.,) required to-constitute a valid usage having the force of law, but also the credibility of the evidence relied on and the weight due to it.
7. Accordingly we heard Mr. Rangachariar upon the evidence in support of the alleged usage. The first observation to be made in regard to it is that in none of the documents relied on is any mention made of any usage on the point. So far as, the earliest documents go, they show nothing more than that certain sums of money were collected by the Zemindar in connection with tapping palmyrah trees for toddy. The description in the accounts of the nature of the collection, 'Kalali,' shows it was unconnected with any proprietary right of the Zemindar in the trees, but was only a levy of the tax known as Abkari falling under the general head of 'Mohatarfa.' Though the various items constituting this head of taxation were excluded from the sources of public revenue intended to be assigned to the Zemindars under the permanent settlement Regulation of 1802, yet it is well known that some of such items continued to be levied by the proprietors of certain Zemindaries long after the permanent settlement. That the collection in question was purely on account of Abkari is clear from the fact that the earlier documents refer to no other class of trees. Even assuming that the collections made by the Zemindar in respect of palmyrah trees were not the levy of Abkari tax but were on account of his interest in the trees themselves, the accounts referred to do not show that the amounts realised were in respect of trees standing on the lands of ryots. Subsequent to 1874, there is some evidence that collections were made in respect of palmyrah trees on lands not belonging to the Zemindar. But the instances are so few and not altogether free from doubt as not to justify their being treated as reliable evidence in support of a custom said to prevail over so comparatively a large tract of country. The evidence that the ryots have had to obtain the permission of the Zemindar for taking the fruit of or for cutting down tumma trees standing on their putta land is as to instances of so recent a date and so slight as to render it of little value in a matter such as this. We cannot be much influenced by the argument based on the fact that, in a considerable number of puttas issued to and accepted by the ryots, since 1874, there is a reservation of the Zamindar's alleged right to palmyrah and other trees standing on putta land. This reservation constitutes one of a number of printed conditions and, being very general in its terms, is not likely to have attracted any attention on the part of the ryots, the large majority of whom are illiterate. Further the allusion to Mohatarfa in the condition in question is calculated to suggest that the claim therein made has some reference to Abkari and thus conduce to the condition passing unchallenged by the* ignorant peasantry. It only remains to say that what has materially contributed to pretensions such as that involved in the claim under consideration not being in recent years strenuously opposed or discountenanced is the misconception as to the nature of the tenure of ryot's holding which came to prevail, particularly in some of these northern Zemindaries, since the decision of 1870 in Chockalinga Pillai v. Vythealinga Pandara Sannady (1870) 6 M.H.C.R 164 which, however, it is but just to add, is not solely responsible for the misconception.
8. We, therefore, agree in the conclusion of the District Judge and, accepting his finding, we must allow the appeal and, reversing the decrees of the lower Courts, grant the declaration prayed for with costs throughout.