Maharajadhiraj Sir Rameshwar Singh vs Sheikh Waizul Haq

Dawson Miller C.J.

This case came before us on appeal under the Letters Patent on the 28th November last year from a decision of Mr. Justice Foster affirming the decision of the Subordinate. Judge which in turn affirmed the decision of the Munsif. The question for determination in the case was whether the plaintiff as landlord was entitled in respect of a certain holding to claim from his tenant not merely the recorded rent but in addition, certain small sums in respect of palm trees. The case alleged on behalf of the landlord was that there was a custom of the village whereby the tenant in addition to the rent for the land was also liable to pay the landlord certain small sums by way of sairat in respect of palm trees when they became juice yielding.

Both the lower Courts appear to, have taken the view that if these sums were recoverable at all they were included in the term rent and as the rent was recorded in the record-of-rights at a certain fixed sum nothing more than that sum was recoverable.

When the case came before this Bench on appeal from Mr. Justice Foster under the Letters Patent we took the view that there might be such a custom as that alleged by the landlord but as the point had not been dealt with by either of the lower Courts we remanded the case to the Court of the Subordinate Judge for a finding upon the question of custom.

The case has accordingly been dealt with on remand by the Subordinate Judge and the conclusions arrived at by him are set out in his judgment dated the 14th January 1924. The conclusions he arrives at are:

(1) That the plaintiff does realise sairat at the rates claimed ''in respect of juice yielding palm trees standing on the raiyati holdings of all the raiyats of the village.

(2) That he has been doing so openly and without coercion and without interruption at least from 1311 F.

(3) That it is not an illegal imposition." He adds "The whole village, in my opinion, would never have paid sairat for such a length of time to the plaintiff if there had been no local custom in their village as alleged in the plaint. For the above reasons I am of opinion that the plaintiff has established the custom regarding sairat as alleged in the plaint.

That is a conclusive finding in favour of the custom and the only objection to entering judgment on behalf oil the plaintiff for the whole amount claimed that has been urged before us is that the period covered by the evidence relating to the custom is only a period of something like 20 years from the present day and that is not in itself sufficient to establish an immemorial custom. It would be, in my opinion, very dangerous and improper to lay down any fixed time for which it is necessary to adduce evidence to show that a custom exists. The learned Judge for the reasons given by him has come to the conclusion that the evidence is quite sufficient to prove an immemorial custom. Indeed he says that the raiyats would never have paid this sairat for such a long period of time if there had not in fact been a local custom in the village to that effect and in arriving at this conclusion, in the absence of any evidence to the contrary by the defendants, I think, he was amply justified on the evidence. In my opinion, therefore, the appeal must be allowed; judgment will be entered for the plaintiff for the amount claimed which includes both the rent proper and the additional sums for sairat in respect of the juice-yielding palms. The plaintiff is entitled to his costs here and in all the Court''s below.

B.K. Mullick, J.

I agree.