Nathuni Rai and Others vs Sir Rameshwar Singh Bahadur

Bucknill, J.—An important question ii involved in these numerous second appeals from, and applications in Civil Revision relating to, a decision of the District Judge of Darbhanga dated the 7th October, 1920 modifying a decision of the Subordinate Judge of that place dated the 31st of March of the same year. There are also cross-appeals by the respondent. The facts are substantially similar in. all the suits and are extremely simple.

The plaintiff is the Maharajdhiraj of Darbhanga and the defendants are occupancy rayats in a Mauza called Narar, Darbhanga, belonging to his estate. The dispute is simply as to whether the defendants can cut down and appropriate trees on the land which they occupy.

Now in his plaint in second appeal No. 398 of 1921 (to the papers in which I, throughout, shall, for convenience, alone refer), the plaintiff, after reciting that Mauza Narar belongs to him in his proprietary interest and that the defendants are Kashtkars under the Ticca system, alleges that they have legally no connection and concern with the timber of the Mango, Jack fruit, Siso, Pithi, Babul and Gamhar trees, which were or are still, standing on the land occupied by the defendants and when any such trees are cut or fall down the plaintiff is legally entitled to appropriate the entire timber thereof. The plaintiff then details the alleged breaches of hU reeited rights and, after setting out the value of the timber wrongly appropriated by the defendants, prayed for the following reliefs:

(a) that on adjudication of title it might be held by the Court that the entire timber of the trees standing on the gachhi of the defendants belongs to the plaintiff after they happen to-fall or are cut down and that the defendants have no connection and concern what ever therewith.

(b) that it might be held by the Court that the defendants had, without any right, cut down the trees and appropriated the timber thereof as detailed in his plaint, and that he is therefore entitled to recover damages to the amount of the value as indicated by him.

The defendants in their written statement alleged that there is a custom prevailing in the Mauza where these lands are situated that the Malik had no right to the trees standing on khap (cash-rent-paying) lands but that the tenants are entitled to appropriate and sell the entire timber of the trees when they are cut and when they fall down. The defendants also maintained that the plaintiff''s claim was barred by limitation. In addition to this the defendants drew attention to a suit brought by the plaintiff a short time previously against two persons named Sondhari Rai and Bachan Rai in which the same question as in the present suit had been raised and in Which he had been unsuccessful. The defendants further put forward certain other contentions, which are not here really material, traversing the allegations as to the number of trees alleged to hare been cut and the value of the timber appropriated by them. The pleading in all the other cases is substantially the same with minor differences which are not, before us, of any moment. On these pleadings the case went for trial before the Subordinate Judge. It will be observed that the principal question for determination is as to the allegation by the defendant? of the custom existing in the village under which the tenantry have the right to cut trees and appropriate their timber without the permission or assent of the plaintiff and without paying him any compensation. There is also the subsidiary question as to whether the plaintiffs claim was barred by limitation or affected by the previous decision in the case which the defendants mentioned in their written statement. Now the Subordinate Judge drew up numerous issues; to 5 only of which I think it is necessary that I should refer. These issues are:

No. 3. Is the plaintiff entitled to the timber as alleged by him?

No. 4. Is there any custom by which the ryots are to get the entire timber of the trees standing on their kasht lands?

No. 6. Is the suit barred by limitation?

No. 8. Are the trees Agachha (useless for utilization as timber) as alleged by the defendants; if so, can the claims lie?

No. 10. Is the plaintiff''s, claim barred by estoppel?

Now it may be advantageous, before attempting to deal with decisions at which the Subordinate Judge and the District Judge respectively arrived, to enunciate clearly the fundamental principles of law upon which the consideration of this case must be approached. It is common ground that, in cases where such a relationship of landlord and tenant as obtains in this case exists, the property in trees and their timber lies with the landlord and that if any custom, deviating from this general proposition, is alleged it must be proved conclusively by those who maintain it. In these cases the plaintiff pleaded general law, the defendants pleaded a custom varying the general law to the effect that the tenants are entitled to cut trees as they wish and to appropriate themselves the timber thereof. Having thus defined the law, it may now be stated that the Subordinate Judge found that the plaintiff was entitled only to half the timber of the trees and decreed the 127 suits in favour of the plaintiff on that basis but without costs. From this decision there were appeals and cross appeals by the plaintiff and the defendants respectively. The District Judge dismissed both without any order as to costs in favour of either party, he however slightly modified the judgment of the Subordinate Judge by holding as against the plaintiff that some kinds of trees which the Subordinate Judge had thought could not be regarded as properly falling within the category of timber or fruit trees (i.e. Agachha) ought not to be excluded from that classification. It is from this decision of the District Judge that these appeals and cross-appeals have now been preferred to this Court. It may be convenient to consider and deal first with the issue No. 10 relating to estoppel. This question relates to what, if any, bearing a decision in a case which was brought by the plaintiff against one Sondhari Rai and others in the Small Cause Court of Darbhanga has on this suit; in that action the plaintiff alleged a claim similar to that in the present cases, against the defendants who were in the same position as are the defendants in these appeals. No evidence was however, there adduced on behalf of the plaintiff to rebut certain testimony which was* brought forward by the defendants in that case to show that the custom under which the tenants were entitled to cut the trees and appropriate their timber existed in this village, It was there held that the defendants had proved a custom and that the plaintiff failed. It is, I think, obvious, as is pointed out by the Subordinate Judge, that such a judgment could not affect any decision which ought to be arrived at in the present cases; as, here, the, parties are entirely different. The matter, however, came to this Court in Maharaja Rameshwar Singh v. Sondhari Rai [193] 1 Pat. L.R. 105 principally upon another point: namely as to whether the Munsif was right in taking into consideration what is known as the "Village Note"; this is a kind of memorandum, drawn up by Survey Officers at the time of Land Settlement operations, which is supposed to give some account of, inter alia, any custom which exists in a locality concerned. The "village note" in respect of Mauza Narar was said to support the defendants'' allegation, but it was contended on behalf of the plaintiff in the revisional proceeding before this Court that it was of no evidential value. Mr. Justice Jwala Prasad, before whom the matter came ruled that the " village note did possess evidential force and should not be excluded from consideration." The Subordinate Judge has rightly pointed out that this previous decision by the Munsif sitting as a Small Cause Court Judge and in a suit in which the defendants were not the same as those in these appeals, could not act as res judicata; whilst the District Judge has indicated that any argument, that an entry in Village Mote, to the effect that a landlord had given up his claim to the value of trees on Khap lands paying full that rent, could operate as an estoppel against him in a suit in which he contended to the contrary, must obviously be fallacious.

[His Lordship then set out the findings of both the lower Courts with their reasons and continued:]

Now before I proceed to consider the argument''s which have been addressed to us on behalf of the appellants (that is by the defendants) in these appeals in their endeavour to show that the District Judge was wrong in deciding that they had not proved the custom which they maintained, I think it is desirable to point out that the main contention which is strongly urged upon us by the learned Counsel who appeared for the plaintiff in his cross-appeal upon this point is that, having come to the conclusion as they did that the defendants had failed to prove the custom which they alleged, the Subordinate Judge and the District Judge, ought, so far as any question of custom was concerned, to have decided forthwith against the defendants. Instead of this, however the Subordinate Judge and District Judge, after having thus held that the defendants had not proved the custom pleaded, proceeded to enquire as to whether they, upon the evidence adduced before them could find any ground for thinking that the plaintiff was not entitled to the whole of the rights which he claimed; and, as I have already stated, their decision was that the plaintiff was only entitled to half the value of the timber of the trees cut by the tenantry or fallen. It has been strongly urged on behalf of the plaintiff that, in thus making out a case for the defendants'' own case and in thus in effect finding in favour of a custom which was not suggested by the defendants, the Subordinate Judge and the District Judge have both made a serious legal error. With this important question I shall deal later.

Now the arguments, which were put forward on behalf of the defendants, in their attempt to show that the District Judge was wrong in thinking that the defendants had not proved the custom which they alleged, do not, I may at once say, appear to me to be of any great cogency. It was first urged that, as in Sondhari''s suit there had been a decision that a custom such as is here alleged by the defendants had been proved, that decision, if not absolutely conclusive, was of the highest evidential value. In this connection our attention was drawn to several cases: in Beg v. Allah Ditta [1917] 44 Cal. 749 a general custom of agnatic succession put forward by claimants to property was traversed by the allegation of an established custom which was referred to in the Riwaj-i-am (Official Records of custom). In Tulsi Mahton v. Jahandu Pande [1917] 2 Pat. L.J. 187 it was similarly held that the Fard Rawaj Bhauli was receivable in evidence and of evidential value in proof of a custom of the nature of rental payable, whilst in Lekraj Kuer v. Mahpal Singh & Raghubans Kuer v. Mahpal Singh [1880] 5 Cal. 744 it was also held that the Wajib-ul-arz (Village Administration papers) was admissible in evidence in support of proof of custom. I do not think however that there is really anything which can be added usefully to what the District Judge has said with regard to the evidential value either of a decision in a previous case between different parties or as to that of such matters as a village note, or papers of the class referred to in the cases just quoted. These latter are perhaps in a somewhat different category and of stronger utility than the first named, but, even so, are in no sense conclusive. It was next urged that the District Judge had not sufficiently discussed in his decision the evidence adduced by the defendants as to the existence of the custom and in particular bad discarded the oral testimony given on their behalf in a very perfunctory manner. I do not, however, think that it can be said that the District Judge''s judgment in this respect is materially irregular. He does not, it is true, discuss the oral evidence put forward by the defendants in any detail, nor, in view of the very large number of witnesses (stated by the Subordinate Judge to be about 170) is it reasonable to suggest that he should hare done so. The Subordinate Judge himself had said quite rightly, "it is not the largeness of their number but the quality of their deposition that is of use. I have carefully considered the nature of the evidence adduced by the defendants'' witnesses which are generally of the same nature. Their statements do not appear to be truthful". And the District Judge, as does also the (Subordinate Judge, points out that their evidence is entirely of interested character. I therefore think that there is no ground for differing from the view to which both the Subordinate Judge and the District Judge came; namely, that the defendants did not prove the custom which they alleged in their written statement.

Having now thus expressed my view that the District Judge was right in his conclusion that the defendants had not proved the custom pleaded it is next most convenient here to deal with the question which is the principal subject of the plaintiff''s cross-appeal. I have already outlined how that cross-appeal arises. The plaintiff (respondent here) contends that it was not open to the Subordinate Judge and the District Judge to find a case for the defendants which they themselves never pleaded and that, even if it had been right for the Subordinate Judge and the District Judge to find evidence of some custom other than that pleaded, their finding was, in this case based upon inferences which could not properly be drawn from the facts as placed before them. To both these arguments the defendants (appellants here) reply that it is open to a Court when a particular custom is pleaded 1o find one of a more limited nature than that adduced and that here the finding was warranted by the evidence.

It is particularly important before considering the first of these two contentions, to observe carefully why the Subordinate Judge and the District Judge thought fit to enter upon such an enquiry. I must admit that I have felt some misgiving as to whether their action was correct. Under the general law the plaintiff had admittedly a good claim; the Defendants had set up a custom that the tenantry was entitled to the trees and appropriate the timber; they had failed to prove such a custom; they had alleged no alternative.

I am inclined to think that the phrasing of the 3rd issue "Is the plaintiff entitled to the timber as alleged by him?" was probably partly responsible for the pursuance of their investigations after it had been decided that the defendants'' contention of custom as pleaded should be rejected; but this further enquiry was actually dealt with both by the Subordinate Judge and the District Judge as part of the issue No. 4: "Is there any custom by which the Ryots are to get the entire timber of the trees standing on their Kasht lands?" The Subordinate Judge, after discussing the evidence as to this issue (i.e., Issue No. 4), appears to have been struck by the undoubted fact that it was to his mind satisfactorily shown by the plaintiff''s witnesses that the practice of the Raj in this Mauza was that these Ryots should apply to the Raj for permission to cut a tree, that they were as a general Rule allowed to fell it and to appropriate the timber on payment of half of the estimated value of the wood to the Raj treasury. He writes, "I accordingly disbelieve the defendant''s witnesses on this issue and hold that their statements that the tenants used to get 16 annas timber without any payment of price to the Raj are false. Considering all the oral as documentary evidence adduced on behalf of both parties I have no hesitation in coining to the conclusion that it has been satisfactorily proved that the Raj used to realise half the price of timber from the tenants of Narar in respect of their trees standing on their Nakdi holding which are known locally as Khap holdings as has been proved by the plaintiff''s witnesses. No doubt the oral and documentary evidence adduced by the plaintiff shows that the practice was for the tenants to apply and then half price was settled on behalf of the Raj on the report of the Raj Amlas and then the tenants used to deposit half price by means of chalans and then they used to cut the trees and appropriate the entire timber. It was contended on behalf of the Raj that the Raj is entitled to get price of 16 annas timber and the price of half the timber was remitted to the tenants as maf because they applied for permission and hence those that cut them without any such permission are not entitled to get such maf. In my opinion this story of treating the remaining half price which the tenants used to get as maf is an afterthought. The chalans filed On behalf of the plaintiff do not treat them as maf. It is not written therein that the landlord''s share is 16 annas price out of which half is remitted for applying for permission to cut as is now alleged. On the other hand these chalans of the plaintiff viz., most of them both of the period prior to the execution of the kabuliats in 1902 and prior to the time of Survey proceedings and also the chalans produced by the plaintiff subsequent to the said periods clearly show that it was expressly written there that the Malik''s share of the timber is half. That being the case the fact that the remaining half share was the Ryoti share was practically acknowledged in these chalans. This was done m pursuance of a clear custom which is expressly seated in the registered Kabuliats of 1902, vide Exhibit 63 (117). It. is clearly mentioned that the tenant would not sell trees without the written permission of the Malik in pursuance of previous custom. The words are Rewaj and Dastoor Sabik; it is futher written therein that if he sells such trees with such permission then he would pay half price to the Malik as he is always doing. Thus payment of half price in pursuance of an old and previous custom is clearly mentioned in these Kabuliats. The idea of treating the remaining half as maf was not present then. No doubt it is written in these Kabuliats of 1902 that if he does not pay the half price then the Malik would be entitled to realise the real price thereof by suit. It was contended on plaintiff''s behalf that the plaintiff is entitled to realise the price of 16 annas share by this stipulation. In my opinion in the first place it is not quite clear whether the expressions real price thereof refers to the price of half share stated before in the said paragraph or to the price of 16 annas timber. If it means as price of 16 annas share then it is in the nature of penalty for not making previous payment of the half share after filing application for permission. The Malik did not reserve the right to realise more that half share according to his discretion when the tenants applied for permission. Moreover in the older Kabuliats Ex 63 (137) of 1895 and in the Kabuliats Ex. 63 (136) of 1898 there does not seem to be any trace of even this alleged penal clause. In the Kabuliats of 1895 and 1898 there is no trace whatsoever of the said penal clause. Rather it is expressly written therein that if a tenant would sell any tree, then half share thereof belongs to the Malik and if he does not pay half share amicably (Bakhudha Men) then the Malik would be entitled to realise by suit. There is not a word about the Malik''s right to realise price of 16 annas share in default of amicable payment as is now contended. That being the case it is clear from the old papers filed by the Raj that in pursuance of old Rewaj prevalent in this village from a long time the Malik is entitled to get half price only and not price of 16 annas timber. And therefore general law has been modified by special custom prevailing in this village of the tenants paying half share only. No doubt 1 or 2 papers hare been filed of recent years to show that the Raj realised full share when the tanant did not pay the half share by application. But these recent attempts cannot in ray opinion over-ride the long established usage by which the tenant became entitled to get half share and the Malik''s share was acknowledged to be only half. In my opinion these recent attempts of realising 16 annas share on the strength of general law, ignoring the old custom prevalent in the village of taking only half share, has provoked this litigation and has led the tenants to deny even half price which they were paying amicably from before. Taking all these facts and circumstances into consideration I have no hesitation in coming to the finding that in accordance with local custom the landlord is entitled to get only price of half the share of timber in this village Narar and the tenants are entitled to get the other half share. I further hold that the plaintiff is not entitled to get more than half share even if the tenant has not taken permission or has cut without permission or previous payment of half price. In any case, the Malik is not entitled to get more that price for half the share. Of course it is for the convenience of both parties to get the half price settled and paid by means of previous application. But if the tenant: does hot do that there is nothing in the evidence of the custom to justify a penalty of payment of full price for default when no such penalty was even thought in the old Kabuliats of 1895 and 1898 referred to above. I decide this issue accordingly and hold that the tenants are liable to pay only price of half the timber of the trees standing over their nakrti holdings."

The District Judge follows the same line of thought adopted by, the Subordinate Judge and remarks. "The next question is whether the landlord is entitled to the whole value of the wood. On behalf of the landlord an attempt was made to say that in those cases in which the tenants obtained previous permission of the landlord half the value was remitted to the tenants. But where no such permission was taken the tenants are to pay the full value. I have been taken through the evidence of these witnesses and I do not think that their evidence on this point is worth anything. Not an instance of the landlord getting the whole value has been given in case of trees cut before the present dispute arose. The instances given of trees cut after the present dispute arose are very few in number. The kabuliats relied upon by the landlord do not show any such distinction. The learned Vakil for the Maharaja laid great stress on the last sentence of para. 9 of the kabuliats and argued that it supported his contention but I cannot agree with him on this point. This last sentence shows that in case payment is not made to the Malik he will be at liberty to realise from the tenant the Assal with interest. The learned Vakil contended that this word "Assal" means the full price, I however, do not agree with him on this point. The word "Assal" literally means principal. The context shows what the principal is. I have, therefore, no hesitation in holding that the Kabuliats do not support the learned Vakil''s contention that the full value is to be paid in case the trees are cut without permission. I may here add that in the plaints no such distinction, is mentioned and plaintiff did not claim the whole price on the ground that the trees in these cases were cut without any permission. I am, accordingly, of opinion that by custom and local usage half the value of the wood goes to the landlord and the other half to tenants whether the latter cut the trees with or without previous permission. In respect to the argument of the learned Vakil for the tenants that half the value is given to the landlord as price of his permission I may refer to Ext. 19/18 which is a petition by a tenant, for permission to appropriate the wood on payment of price. Half the price was taken. In this case as well as in some other cases covered by some other applications there was no question of permission to cut trees. In other cases, no doubt, the applications contained prayer for permission to cut and appropriate. But the right to cut the trees is conferred on the tenants by Section 23 of the Bengal Tenancy Act and so the permission must be taken to be permission to appropriate and not the permission to cut. The two rights are dealt separately in two different paras of the kabuliats. The right of the landlord to half the value of the trees is recognized in para. 9 which has nothing to do with the right to cut the trees. So this right has nothing to do with the permission to cut. The learned Vakil argued that the Kabuliats cannot be taken as evidence of custom as it is always open to the contracting parties to expressly disregard custom in making contracts. But the recital in paragraph 9 shows that this stipulation was made in express recognition of the custom and not in spite of the same. So there is no force in the argument of the learned Vakil,"

It does not seem to have been suggested to the Subordinate Judge or the District Judge that, the plaintiff''s case resting on the general law and the defendants having failed to establish the very clearly defined custom which they pleaded, there might be, in law, nothing further for the plaintiff to do in order to justify a decree being passed in his favour; or that it was not, in law, open to the Court to find the existence of some custom not alleged by the defendants and of a more limited nature than that put forward by them.

Apart from this purely legal aspect of this procedure that did, it is true, mention shortly the proposition that what is gained by a regular repeated permission cannot be the foundation of a custom as against a licensor, they dismiss the suggestion on the ground apparently that the contracts made between the plaintiff and the defendants were so made in express recognition of the custom and not as negativing it.

The question as to whether the inferences, drawn from the evidence as to the existence of such a custom, are justified is of course a separate matter for consideration. I attempt, therefore, in the first place to consider the important point as to whether it was open to the lower Courts to find a custom other than that adumbrated by the defendants. Unfortunately there were but few authorities quoted to us on behalf of the plaintiff and none on behalf of the defendants on this point; the only suggestion indeed made on behalf of the latter being that a plea of a wide custom might justify a finding on the evidence of the existence of a narrower one In Vol. 10 of Halsbury''s Laws of England at page 236 para. 446 it is stated. "Evidence to prove a custom must not only be consistent with the custom which is alleged but must also1 prove a custom which is no wider than that alleged. If the evidence tends to prove a custom wider than which is alleged, the party seeking to establish the custom is not at liberty to adopt part only of the evidence and to reject the rest." But this proposition does not in my view necessarily tend to establish the converse; namely that if a broad custom is pleaded the existence of a lesser custom could not, if proved, be found. In the case of Eshen Chandra Singh v. Shama Charan Bhutto [1866] 11 M.I.A. 7, it was held by the Privy Council that it was incorrect to conclude parties (i.e., to hold parties bound) by inferences of fact not only inconsistent with the allegations in the plaint but which were in reality contradictory to the case made by the plaintiff is the Court below. There was a suit for specific performance of an agreement the object of which was to recover possession of four annas undivided share in a Putnee Talook. The decision of the Court of First instance found the case in direct contradiction to the allegation contained in the plaint. When the matter, however, went on appeal to the High Court of Calcutta that Court appears to have formed a conclusion upon an assumed case which was inconsistent with the recorded evidence contained in the original judgment. Lord Westibury in the course of his decision stated: "This case is one of considerable importance and their Lordships desire to take advantage of it for the purpose of pointing out the absolute necessity that the determinations in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made." I do not, however, think that these remarks bear very forcibly upon the decision in the appeals now before us. For although it is quite true that in the pleadings there is nothing indicated as to the exact custom which the lower Courts have found to exist it is difficult to say that the determination to which the lower Courts have come was not founded upon, or a part of the case as it was presented in evidence before them. The case of Bhugwan Singh v. Bhugwan Singh [1899] 21 All. 412 which was also quoted to us seems to me to have little bearing upon the matter. Their lordships of the Privy Council in that case merely pointed out that special custom may be pleaded by way of exception to a general Rule of law but must be proved by evidence. They condemned the procedure which the learned Chief Justice of Allahabad had apparently adopted of tying the plaintiffs down to the obligation of showing a custom providing for a specific application of general law; their Lordships considered that in adopting this procedure the learned Chief Justice was inverting the process by which the law should properly be ascertained or, in other words, that where a plaintiff relies upon the general law it is not necessary for him to prove any custom as to the practice of any such general legal principle. The ancient case of Ward v. Shepherd 46 E.R. 367 which was also referred to, merely lays it down that a defendant could not plead a contractual relationship as well as a, custom. If a defendant pleads that he has a right arising out of a contract with a plaintiff, he cannot, at the same time, plead that that right arises out of a custom presumably, because it would be embarrasing. Perhaps the case of Desai Ranchhoddas Vithaldas v. Rawal Nathubhai Keshahhai [1897] 21 Bom. 110, is of slightly more value in this appeal than any of the others which have been placed before us; but even that does not appear to me co be of much practical utility. It was a second appeal. The plaintiffs sued to obtain recovery of possession of certain lands to which they alleged they had succeeded on the ground that there was a custom amongst their people excluding widows and daughters from inheritance. It was held by the lower Courts that a custom excluding daughters but not widows had been established. The High Court of Bombay held that if a decree appealed against was based upon wrong views of the law of evidence or upon a misconception of the canons which the Privy Council and the High Court had defined as to how a special custom should be proved, the High Court ought to interfere in second appeal. It was held that the plaintiffs should not have been allowed to shift the basis of their claim from an alleged custom which excluded both widows and daughters to one which only excluded daughters. The point, however, for decision in the present appeals is to my mind very different from that which obtained in the case quoted. The plaintiff here never based his claim upon any custom at all. The defendants alleged the custom which they failed to prove; but from evidence given on behalf of the plaintiff to rebut the evidence given on behalf of the defendants, the lower Courts considered that it was apparent that a custom had been proved, of the same type as that which the defendants had alleged but of a narrower character; was it permissible for them to record and decide upon such a finding? I have not much doubt that it is only within comparatively recent times and since there has been attached to the form of pleadings less rigid adherence than in former days that the answer to this question would have been in the affirmative. Enquiries as to the existence of a custom are not on the same footing as those relating to a contract. There is little analogy between a case in which a plaintiff claims � 1000, the defendant denies any indebtedness and a Court finds � 500 due and a suit in which a plaintiff claims to close his private park and the defendants plead a right of way by custom across it; and yet I cannot help thinking that in modern times a Court would have little hesitation in finding that although the entire custom alleged by a defendant did not exist yet a material part of it did. It is perhaps best to illustrate what I mean by a simple hypothetical illustration drawn from English life. A landowner has an estate on which lies a large lake and near which is situate a village. By the common law all the fishing rights in the lake belong to the land-owner The villagers however net and angle for fish in the lake and he brings actions against villagers A, B, C, D and E to restrain them from doing so. They plead that the villagers have by custom a general right of fishing in the lake; they fail, however, to prove that they have any general right of fishing; but, in the evidence which is brought forward by the plaintiff to rebut that which has been adduced by the defendants, it transpires very clearly that there is a custom from time immemorial by which the villagers may catch fish in the lake with nod and line. I do not think that a Court would have any hesitation in refusing to take away from the villagers that customary right or in finding the existence of this limited custom. I am disinclined therefore to consider that it may not have been open to the Subordinate Judge and the District Judge to find the existence of this custom (if indeed it did exist), and in this way to limit the relief granted to the plaintiff. On the other hand there is much to be said for the argument here that there was no plaintiff''s evidence that did indicate that there was some kind of practice and it would seem clear that the Subordinate Judge and the District Judge have substantially discarded the oral evidence given on behalf of the plaintiff and have based their finding as to the existence of custom upon a construction of the Kabuliat under which tenants leased lands from the Raj, Our attention has been drawn by the learned Counsel who appeared for the plaintiff to some of the oral evidence given on the part of the plaintiff and notably to that of P.T. Onraet who is one of the managers of the Darbhanga Raj. He deposes very definitely (and his evidence may be taken as typical of that which was given on behalf of the plaintiff in connection with this matter) that "In Narar when the Ryots applied for permission to cut trees standing on their Nakdi holdings, permission used to be given on receiving half of the price of the timber. When they did not apply then the Raj used to realise; full price of the timber. The Ryots were allowed the other half when they applied for permission. The other half was allowed to the ryot''s as a matter of concession to them when they applied for permission and not as a matter of right." The Subordinate Judge, however, was of the opinion that this allegation, that the grant of the half of the value of the> timber to the tenant was a matter of grace, was an after-thought, whilst, the District Judge is impressed by the fact that no instance of the landlord getting the whole value was given in the case of trees cut before the present dispute arose. It is not proper in second appeal generally to consider whether or not the lower Courts have taken a right view of evidence in coming to findings of fact: but, putting aside the oral evidence, the construction of the Kabuliats, upon which the Subordinate Judge and the District Judge mainly based their view that a custom was shown, can certainly be considered by this Court in order to see whether their meaning has been properly interpreted. A typical specimen of this Kabuliat is shown in that executed by one Masan Barhi, dated the 1st of August 1902. The material portions read thus:

Para 7�"I shall not cut and fell the fruit bearing and non-fruit-bearing trees existing on the lands without the consent of the proprietor" and para 9, "In conformity with the conditions laid down in para 10 of the previous Kabuliat and the custom and usage formerly prevailing in the village I shall not sell the-fruit bearing or non fruit-bearing trees without the written consent of the proprietor or his authorised Amla. If I sell the same after obtaining a written permission of the proprietor or his authorised Amla then I shall continue to pay the price in moiety thereof to the proprietor as I have all along paid the same to him without any objection whatever. If I fail to pay the same the proprietor is and shall be competent to realise the principal amount of price besides interest thereon till the day of realisation from my person and property by instituting a suit in Court.

Now the Subordinate Judge seems to have been very dubious as to what the "principal" or as he describes it the "real" price actually meant. He suggests however that if it means the whole value of the timber, it might be regarded as in the nature of a penalty on the tenant if he did not apply for permission to cut the tree. He also points out that in still older Kabuliats than those of 1902 this penalty Clause (as he calls it) does not appear to be included. The District Judge however is decided in his view that the word "principal" or "real" does not mean the "full price" at all but that from the context it indicates only the half price. I am bound to say that I think the construction which has been placed upon these Kabuliats is incorrect; and that even if it were correct its effect would not be that of proving a legal usage which could be regarded as a custom capable of being supported by the tenantry against the landlord. It is instructive to observe here that even now in their grounds of appeal the defendants in paragraph 8 maintain that the District Judge was wrong in his decision; on the ground that the Kabuliats were taken by the plaintiff in defiance of the custom and of the Record-of-rights and that these Kabuliats sought to set up another custom which, however, could have no effect in destroying the custom which was alleged by the-defendants, that is to say their right to the whole. So far as I can see there is nothing in these Kabuliats which would support a definite custom which could be recognised by law; it seems to be admitted that, as, at any rate, a matter of contractual relationship between the plaintiff and the tenantry, the latter could not cut down a tree without obtaining the permission of the former: and, although the District Judge thinks that the recital in paragraph V) of the Kabuliats shows that the stipulation as to obtaining consent to sell the timber was made in express recognition of a custom that the tenant should get half the value, it is equally clear that neither the cutting of the trees nor its sale could lawfully be effected without the consent of the proprietor; and this was so whether under the Kabuliats or by the general law. I cannot think that, where it is necessary for a tenant to get permission to cut down a tree, the fact, that if he does so obtain such permission before cutting it down, he is granted half the value of the timber, can well be shaped into circumstances upon which any custom recognised as such in law can be based. To follow this line of thought to its logical conclusion let us suppose that today an individual applied to the plaintiff to lease some of the plaintiff''s land as a kashtkar on the Ticca system. If the plaintiff chose, it seems to are that there is nothing to prevent him from putting in the Kabuliat of lease a Clause simply saying that he would not allow the tenant to cut down any trees. The tenant might complain that he was being treated differently to the way in which the plaintiff had previously treated other tenants in the village; but it is difficult to see how he would be in a position to force the plaintiff to accede to his wishes. Although, therefore, I think that the evidence in the case undoubtedly indicates that, as a matter of practice, the plaintiff has been in the habit of allowing upon application a tenant to sell and appropriate half the value of the timber of a tree which has been, with the plaintiff''s assent, cut down or which has fallen down, I do not think that that practice can be regarded as under the circumstances capable of being crystallized into a custom recognizable by law. For this reason, therefore, I think that the cross-appeal of the plaintiff in connection with this part of the case must be allowed.

That the plaintiff''s case was barred by limitation was not very strongly urged before us. It is difficult indeed to see how it could be. The period of limitation is one of 3 years but both the Subordinate Judge and the District Judge on Issue No. 6 entirely disbelieved the defendants'' evidence and believed that given on behalf of the plaintiff. The Subordinate Judge finds as a fact that the trees in connection with which the suits were brought were cut within the period of limitation; whilst the District Judge, after discussing the evidence most carefully in great detail, comes to the conclusion that there can be no doubt that the Munsiffs decision is correct.

There remains only a small matter upon which the plaintiff has entered a cross-objection; it relates to the difference of opinion between the Subordinate Judge and the District Judge as to what are the species of trees to which the plaintiffs right, applies. It is common ground that the tenantry have the right to cut and appropriate to themselves trees which can be classified as (Agachha;) a word which I understand means useless or valueless for fruit-bearing or timber purposes. The Subordinate Judge points out that the defendants alleged that many sorts of trees giving them by name (Sisam, Gamhar Gular, Mahua, Jamun, Kair, Babul, Imli, Barhar, Bair, Siris, Simal, and Sahijan) were Agachha. He held that of these species two only, namely Bair and Shaijan, were Agachha and excluded them from the plaintiff''s claim. The District Judge however, came to the conclusion that there were other trees which should properly be placed in the Agachha category and stated that these were Barhar, Simar, Gular, Jimal, Bair, Sahijan and Siris. The learned Counsel for the plaintiff objects tp the inclusion of the two first named and points out that even from the Judge''s own remarks it is not possible that they should be regarded as in the Agachha class. What the District Judge says is. As for Barhar and Simar, though they are comparatively bit? trees and as their timber is sometimes used for some other purposes they cannot be classed as either timber or fruit-bearing trees. Their timber is of very inferior kind and planks etc. made of them do not last long. On the other hand, the tenants derive very little profit from these trees when they are allowed to stand on the land. They sometime occupy much room and the tenants are required to pay rent for the lands occupied by such trees. So I must class these as Agachha. "I am of opinion that whether Agachhas or not the tenant is entitled to these trees". I think that the contention put forward on behalf of the plaintiff is here justified. I am not sufficiently familiar with the nature of the trees mentioned by name to be able to express any opinion as to what particular trees should be included in the useless class; however, trees such as bear useful fruit or are utilizable as timber, it seems clear, fall within the class over which the proprietor has rights. One can well understand that there are certain treesor bushes which are not in this class; but the two trees or bushes mentioned are stated to be big trees the timber of which, although inferior, is utilizable for making planks. I think that they should not have been included in the category of trees over which the landlord has no rights.

The result, therefore, will be that the defendants'' appeal is dismissed with cost throughout. The plaintiff''s cross-appeal will be allowed with costs. The judgment of the District Judge will be set aside and plaintiff be granted a decree in the terms of his plaint other than with regard to such trees as are found by the Subordinate Judge to be Agachha.

The general order in the above appeals and civil revisions will therefore be;

(1) The second appeals filed by the tenant defendants are dismissed in each case with costs except that there will be one joint hearing fee assessed at Rs. 60 to be distributed equally in all the cases.

(2) The second appeals by the plaintiff landlord with regard to suits, the value of which exceeded its. 500 are decreed in each case with costs, except that there will be but one joint hearing fee assessed at 3 gold Mohars to be distributed pro rata

(3) Second appeal arising out of suit the value of the subject matter of which did not exceed Rs. 500 and with regard to which applications in Civil Revisions have been filed are dismissed, but without costs;

(4) Civil Revision cases except No. 244/21 which related to second appeal No. 65/2l are allowed, but without any order for costs;

(5) Civil Revision No. 244/2l which was excepted in the previous Clause will be dismissed as having abated without any order for costs and

(6) The memoranda of second appeals arising out of suits not exceeding Rs. 500/- in value and with regard to which no application in Civil Revision cases were filed, will be treated as applications in Civil Revisions and be allowed as such, without any order for costs.

The order of the costs governs all the Courts.

Ross, J.

I agree.