Yashpal Singh And Anr. vs Jagannath And Anr. on 27 September, 1945
12. He also relies upon Tajammul Husain v. Banwari Lal ('26) 13 A.I.R. 1926 All.
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Syed Tajammul Husain vs Banwari Lal And Ors. on 19 June, 1925
Lakshmidhar Misra vs Rangalal on 20 October, 1949
311, F.B. Tajammul Husain v. Banwari Lal (1925) I.L.R. 48 All.
Har Prasad And Ors. vs Hori Lal And Anr. on 1 November, 1928
24 : 19 A.L.J. 104 and Tajammul Husain v. Banwari Lal 88 Ind. Cas 752 : 23 A.L.J. 932 : L.R. 6 A. 179 Rev. : A.I.R. 1986 All. 47 : 48 A, 77. In the later cases, the instances were numerous, (the two earlier cases do not show how many instances were brought to the notice of the Court) and it was said that in the circumstances it was for the zemindars to explain how the transfers came to be brought about if no custom existed.
Tirkha Ram And Anr. vs Pt. Murari Lal And Ors. on 1 February, 1935
311 does show that transfer by themselves may not be sufficient evidence of the existence of a custom, but where a question of fact is at issue, each case must be decided on its own merits and the finding arrived at on the evidence adduced in one case cannot be used to guide the decision of a kindred issue in another case, not heard with it : see Tajmmul Husain v. Banwari Lal 1926 All. 43.
Kushalpal Singh vs Gulzari Lal And Anr. on 14 February, 1933
The learned Counsel for the plaintiff-appellant has assailed it on the ground that the mere fact that reayas made transfers of their houses is no evidence in rebuttal of the custom recorded in the Wajibularz. He argues that a reaya may sell or mortgage his house with the consent of the proprietor, or that the proprietor may not have known of the transaction of sale or mortgage. He referred to some decided cases in which it was held that the custom recorded in the Wajibularz was not, in the circumstances of these cases, rebutted by numerous sale-deeds executed by the reayas. On the other hand, we may refer to Tajammul Husain v. Banwari Lal AIR 1926 All 43, in which it was held that the existence of a large number of sale-deeds, extending over a period of some 60 years, whereby tenants owning houses in the abadi had transferred them to strangers, without any objection on the part of the zamindars, was evidence upon which a finding as to the non-existence of the custom can be based. In our opinion, every case depends upon its own circumstances. It is always a question of fact as to whether a given piece of evidence warrants a certain inference or not. Taken with other circumstances it may be permissible to hold that a large number of sales and mortgages by reayas in a village completely negatives the existence of ' the custom recorded in the Wajibularz. It was open to the lower appellate Court to have considered the sale-deeds, mortgage-deeds and sale-certificates relied on before it to be of sufficient value to warrant a finding that the custom set up by the plaintiff, though recorded in the Wajibularz, has not been proved. In each case the question is one of the weight of evidence and if after considering the entire evidence the lower appellate Court records a finding without contravening any rule of law such finding is conclusive in second appeal.
Kallu Mal vs L. Ganeshi Lal And Anr. on 23 October, 1935
9. In our opinion when the position of ryots and residents of agricultural villages is weak as against the zamindars of the village the fact that a very large number of such residents have been openly transferring their houses for generations and have been executing registered documents to effect such transfers is a strong circumstance which makes it highly probable that such a custom existed, otherwise they would not have had the courage to make such transfers, nor would transferees have undertaken the risk of acquiring property under such transfers. It is also clear that the first time when an assertion was made on behalf of the zamindars challenging the right of the residents to transfer their houses was in 1918. But no proof was given that previous to this the transfers were ever impugned. Since then the transfers have naturally been multiplying. This is natural as the village Chulhauli being within the two miles of a big railway junction like Tundla is bound to grow rapidly and with the growth of the persons residing there the number of transfers would increase. This would not necessarily show that the residents are out of spite transferring their houses or that they are really creating evidence in support of such a custom. The existence of large transfers are in consonance with the needs of a growing town where new residents come to reside. We may mention in this, connection that in Tajammul Hussain v. Banwari Lal 1926 48 All 77, the custom was found to have been established on evidence not nearly so strong as in this case. Every case must depend on its own circumstance. It is impossible to lay down any hard and fast rule which would govern all cases. In the present case the evidence produced by the defendant satisfied the trial Court which had heard the witnesses and had examined, the documents. It however did not satisfy the lower appellate Court. But we have already pointed out that in many respects the lower appellate Court approached this question from a wrong standpoint and threw a very heavy bur-den on the defendant to establish the custom.
Sursingji Dajiraj Thakorsaheb vs Manilal Vallabhdas Parikh on 25 July, 1930
In Tajammul Husain v. Banwari Lal (1925) I.L.R. 48 All. 77 it was held that the existence of a large number of sale-deeds, extending over a period of some sixty years, whereby tenants owning houses in the abadi had transferred them to strangers, without any objection on the part of the Zamindars was evidence upon which the High Court, in second appeal, might find the existence of a custom established although the lower Courts had negatived its existence.
Ganga Prasad vs Babu Ram And Anr. on 2 November, 1926
9. The question that I have to consider is whether in the absence of any explanation by the plaintiff-respondent, as to the circumstances under which the eight sale-deeds relied on by the defendant-appellant were executed, is the custom set up by the defendant-appellant to be held as proved. In my opinion there may be cases in which because of the large number of transfers by raiyats extending over a long number of years, the conclusion in favour of the existence of a custom entitling the raiyats to transfer the site of their houses may become so irresistible, that but for an explanation from the zamindar as to the circumstances which led to those transfers, the Court may be compelled to hold that the custom set up by the raiyat is proved. But it is impossible to lay down any inflexible rule of universal application as to in what cases it will lie on the zamindar to explain the transfers made by the raiyats. Each case must be decided on its own facts and circumstances. Where the number of transfers relied on in support of the custom entitling the raiyats to transfer the site of their houses is small, the burden does not lie on the zamindar to offer any explanation as to those transfers. This was the view taken by a Bench of this Court in the case of Tajammul Husain v. Banwari Lal A.I.R. 1926 All. 43.
Mt. Aisha Begam vs Daulat Singh on 27 January, 1927
5. In that case it was also stated that if the defendant had set up a local custom by which an occupier could sell his right to occupy, the Judges would have been prepared to hold that such special custom was bad. This, however, in the circumstances was an obiter dictum, and there is at least one case in which a right to transfer the right of occupancy has been recognized: see the ruling in Tajammul Husain v. Banwari Lal A.I.R. 1926 All. 43. But there, it will be observed, there were no less than 126 instances cited ranging over a period of sixty years.
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