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Judgment
These oases come before us on second appeal after having been once remanded by this Court with certain directions.
It appears that upon the first hearing the Subordinate Judge, reversing the decision of the Court of first instance, which had given the plaintiff a decree, refused to receive in evidence 21 decrees which had been considered by the Munsif. He based his refusal to receive these decrees in evidence upon the authority of a Pull Bench case, referred to by the Advocate-General Gujiu Lall v. Fatteh Lall 6 C. 171. The Subordinate Judge has now, under the directions contained in the remand order, taken these decrees into consideration.
It is urged before us on second appeal, first, that in law the lower appellate Court had no right to take these decrees into consideration ; and, secondly, that they really afford no proof in support of the point to prove which they were tendered and received.
"With regard to the first point, we have to observe in the first place that we consider it extremely doubtful whether we can interfere with the remand order. In the second place, we think that these decrees were admissible in evidence under the provisions of Section 13 of the Evidence Act; and being admissible, that the Subordinate Judge was well warranted in coming to the conclusion that they afforded some evidence in corroboration of the plaintiff''s case. The case made by the plaintiff was that the tenures held by the tenants, against whom the 21 suits were brought, were to be measured by a cubit of 18 inches; in other words, that the customary bigah of the pergunnah was a bigah of so many square yards. The contention in the written statements of the defendants who appeared was that they did not hold the quantity of land said to be in their possession, and the ground upon which they made this allegation was, as appears from the proceedings, that the landlord ought not to measure with a cubit of 18 inches, which would give a bigah of so many square yards, but that he ought to measure with a cubit of 21 odd inches, which would make a bigah of so many more square yards, that is to say, that if the customary measurement was applied to the land in respect of which the claim for rent was made by the plaintiff, it would be found that the amount due is not so much as is claimed.
It appears that in these 21 suits the tenants consented to use what the landlord claimed to be the customary measurement, upon the understanding that, if it should afterwards be found that the customary measurement was as they claimed it to be, namely, with a cubit of 21 odd inches, the decrees should be drawn up in accordance with that finding. They failed to show that any such measurement was in existence; and we cannot but think that, under these circumstances, these decrees do furnish evidence of "particular instances in which a custom was claimed."
The two grounds of appeal taken by the learned Advocate-General therefore fail.
The appeals must consequently be dismissed with costs.