JUDGMENT

Bennett, J - This is a second civil appeal against the judgment and decree of the Additional Civil Judge of Unao who set aside a decree of the Munsif, South Unao. The suit was brought by the appellant, Thakur Lal Jogendra Bakhsh Singh talukdar, of the Gopal Khera Estate against an Ahir tenant to recover from him the sum of eight annas claimed as customary dues for the years 1344 and 1345 Fasli. It is alleged that the amount was due under a custom recited in the wajib-ul-arz of the first settlement under which the Ahir tenants were obliged to pay 4 chhataks of ghee annually to the talukdar in return for the right to graze their cattle on the banjar land. A somewhat similar custom was applicable under the wajib-ul-arz to Gadarias. The suit was decreed by the Munsif but dismissed in first appeal by the Additional Civil Judge. The material issues in the suit were:

(1) Has the defendant any milching cattle? (2)Has the defendant grazed his cattle on the plaintiff's land as alleged? (3)(a) Is there any custom as alleged by the plaintiff? (b) Can it be enforced?

2. Both the lower Courts are agreed that the defendant Mangal had milching cattle and these cattle grazed on the plaintiff's land. They are also agreed that there existed a custom as alleged by the appellant. On the question whether that custom is enforceable the Munsif held that it was, while the Additional Civil Judge held that it was not. The judgment of the Munsif shows that various arguments were advanced before him to show that the custom was unreasonable, such as the argument that it should not be applied to certain castes only, or that an Ahir who owned a single animal should not be required to pay as much as an Ahir who owned a hundred head of cattle. This argument about the reasonableness of the custom appeared to have been dropped in the first appellate Court and another argument was there advanced that actually the area available for pasture had much declined since the first settlement when the custom was recorded, and, therefore, the custom was no longer reasonable. It was shown by the evidence that the area had considerably declined and that much of the grass of the pasture land was sold away. As regards the grass which was available to the Ahirs the Additional Civil Judge held that it was of little or no value. He said:

The cattle of the village may certainly roam about on that portion of the waste land on which grass does not grow. They may squat on it and bask in the sun. In rainy season they may nibble a blade here and a blade of grass there. But can this be called pasturing of cattle? Now the wajib-ul-arz clearly lays down that the Ahirs and the Gadarias pay the cess in lieu of the advantage of free pasture. If this advantage is greatly curtailed or altogether withheld then what is the justification left for the cess?

3. At first sight there is some force in this argument but I have not been referred to any evidence which shows that that portion of the pasture land which has been left for the Ahirs and the Gadarias is of little or no value, and I think the Additional Civil Judge has relied rather on his imagination in finding that the land which was left has no grass on it worth the name. It is true that the evidence shows that the appellant has sold grass to the value of Rupees 125 in the year. According to the patwari there are some 4000 bighas of pasture land, but this was apparently the original area as Ex. 7/1 shows that there are now only 2048 bighas. The patwari says:

I cannot say the approximate area preserved for grazing cattle by the talukdar. To my mind this area would be about 400 or 500 bighas.

4. The appellant's counsel says that this refers to the area preserved by the talukdar for his own cattle, but this seems doubtful. Further on the patwari says:

I cannot say how much banjar land was preserved before by the talukdar and how much is preserved now. The grass of the preserved banjar land is sold by the talukdar.

5. Possibly this refe