Akbar Khan and Others vs Sheoratan and Others

It has been held by this Court H.C.R. 1870 N.W.P. 425, that a Civil Court is not precluded by the terms of Regulation VIII of 1822, Section 9, Clause i, from enquiring into and declaring'' a right on the part of the zamindar to cesses and collections, although not avowed and sanctioned, nor taken into account in fixing the Government jama at the time of settlement, notwithstanding that until so avowed and sanctioned they cannot be collected by the zamindar, and there is nothing in the terms of Section 66 of Act XIX of 1873 to a contrary effect. The plaintiff''s claim the right and the cess on the old custom, and this question of custom, which has not been distinctly determined, must be tried by the Lower Appellate Court.

We remand the case for this purpose u/s 354 of Act VIII of 1859, and allow.seven days for filing objections to the finding.

The Judge''s finding on remand having been in favour of the plaintiff''s right and confirmatory of the alleged custom, the High Court decreed the appeal in the following judgment:

We accept the finding of the Lower Appellate Court, to which no objections have been preferred, and reverse the decree of the Lower Appellate Court and restore that of the Court of first instance and decree this appeal with costs.