Mahabali vs Sahdeo and Another

This appeal arises out of a suit in which the plaintiff sought to be put into possession of certain property which had been usufructuarily mortgaged to the respondents. It was necessary for the plaintiff to prove the existence of some custom. He had to prove a custom which gave him a right to be substituted for the mortgagee. The lower Appellate Court has found that he has not established the existence of such a custom. We find that there was an entry in respect of preemption the wajib-ul-arz of 1840. This recorded a right in the case of mortgage to lambardars and to co-sharers. The entry in the wajib-ul-arz of 1882 is of a totally different nature. In the first place it does not refer to mortgages at all. Lambardars are dropped out altogether and the right is given to an own brother (apparently irrespective of whether he is a co-sharer or not) and then to near relations, then to co-sharers in the same lambardari, and then to other co-sharers. We think that the Court below was justified under these circumstances in holding that the plaintiff had not established the existence of the custom which it was necessary for him to prove. So far as the finding is a finding of fact it is binding upon us in second appeal. We dismiss the appeal with costs including in this Court fees on the higher scale.