Bhagwan Singh and Another vs Lachuman Prasad Sahu and Another

Kulwant Sahay, J.—[After stating facts as set out above, His Lordship proceeded.] It has been argued on their (Dfts.) behalf that the learned Subordinate Judge has not considered the cumulative effect of all the documents and the oral evidence on the question of custom. The learned Subordinate Judge has considered each one of the documents produced by the defendants to prove custom. There were nine instances of transfer upon which the defendants relied. The learned Subordinate Judge has considered each one of these instances and has held that they did not prove custom. He has also considered the oral evidence and he has come to the finding that the witnesses examined by the defendants did not prove the custom alleged by the defendants. It cannot be said that ho has not taken the effect of the entire evidence into consideration. It has been argued that the village note prepared by the Settlement Officer and admitted in evidence in this case u/s 35 of the Evidence Act has not been given proper effect to by the learned Subordinate Judge. The village note says that "the custom of transfer of occupancy rights is admitted by the landlords. The landlord does not realize any salami from the transferee, but ho realizes the arrears due from the holding from the transferee." This entry in the village note is only a piece of evidence. There is no presumption of correctness attached to it and as a piece of evidence it was considered by the learned Subordinate Judge who came to the conclusion, that standing alone, this village note was sufficient to establish the plea of the defendants. The learned Subordinate Judge was entitled to give such weight to this piece of evidence as in the circumstances of the case he considered proper, and this is not a ground in second appeal for disturbing the judgment of the learned Subordinate Judge. Having regard to the finding arrived at by the learned Subordinate Judge, in my opinion it is not open to the appellants to say that he has come to a wrong conclusion. His findings are based upon evidence on the record and cannot be disturbed. The appeal is dismissed with costs.