BAPNA, J. - (1.) THIS is a second appeal by the defendant in a money suit. The respondent sued the appellant on the allegation that he was the Thikanedar of Bissau, having a share in the town of Jhunjhunu. The defendant Hanuman Prasad purchased a house situated in the Pana (Patti) owned by the plaintiff in Jhunjhunu from Bansidhar and Vishweshwarlal an the 2nd of February, 1946. It was alleged that the plaintiff was entitled to Moharana, a kind of tax or cess on sales of immovable property situated his Patti, at the rate of Rs. 15/- per cent on the purchase value of the site and the building. He claimed Rs. 375/- on the allegation that the purchase price was Rs. 2500/-but the defendant had wrongly inserted it as Rs. 1500/- in the sale deed.
(2.) THE defendant, Hanuman Prasad, pleaded that the sale of the house was for Rs. 1500/- only, out of which the price of the site was Rs. 500/- and the balance of Rs. 1000/- was the price of the structure on the land. THE plaintiff's claim for Moharana was denied. THE plaintiff's claim for Moharana was denied. It was pleaded that the plaintiff had no interest in the property sold to the defendant, and there was no custom under which such Moharana could be claimed on sale of property belonging to third parties. The trial court, after evidence, held that the sale of the site with the structure thereon was for Rs. 1500/ -. It was held that under the custom prevailing at Jhunjhunu, the plaintiff was entitled to Moharana at the rate of 15 per cent on the sale value and the claim of the plaintiff was decreed for Rs. 225/ -. The defendant filed an appeal, but without success. Hence this second appeal. It was argued by learned counsel for the appellant that the plaintiff had not pleaded custom in support of his claim in his pleadings, and the lower courts fell in error in upholding the claim of the plaintiff respondent on the basis of a custom. It was further argued that the custom, even if held to be proved, was unreasonable, as it interfered with the freedom of a citizen to sell and purchase immovable property. It was argued that, in any case, the levy of Moharana on the structures was unjustifiable on any ground whatsoever. Learned counsel for the respondent argued that the custom was so notorious that no special pleading was necessary, and the matter had come before the Chief Court of Jaipur on more than one occasion, and the existence of the custom was upheld in those cases. Learned counsel for the respondent relied on Ram Niranjanvs. Thikana Mandawal (1) (10 Jaipur Law Reports, 52.) and an unreported decision of the Chief Court of Jaipur dated 11th January, 1937, in connected appeals Nos. 9, 92 and 104 of Svt. 1990. (Ramkaran vs. Thikana Bissau, Thikana Bissau vs. Hardayal, and Thikana Dundlod vs. Hardayal & Co. ). The question of custom seems to have been fully thrashed out in Ram Niranjan vs. Thikana Mandawa (1), and a large volume of oral and documentary evidence was submitted in that case, and it was held that there was a custom by which a Thikanedar in the town of Jhunjhunu was entitled to recover Moharana in respect of immovable property, situated in the Pana (Patti) of the Thikanedar, sold by one person to another. The trial court, in that case, while upholding the existence of the custom, had dismissed the suit of the Thikanedar on the ground that the custom was unreasonable; but the Chief Court set aside this view, and held that the custom was a valid one, and decreed the suit accordingly in favour of the Thikanedar. This decision was given by the Chief Court on the 22nd of February, 1936, and it was followed in Ramkaran vs. Thikana Bissau decided on 11th January, 1937. There is no contrary decision produced by the appellant, and we agree with the contention of learned counsel for the respondent that these two decisions should be taken is sufficient evidence of the custom of the Thikanedars to recover Moharana dues in respect of the property situated in their Panas and sold by one person to another. The next question argued by learned counsel for the appellant was that this cess, over and above the stamp and registration charges, was a clog on the right of the citizens of India to hold and possess property, and was, therefore, invalid as being an infringement on one of the fundamental rights of the citizens guaranteed by Art. 19 of the Constitution. The transfer of property in this case took place on the 2nd of February, 1946, long before the Constitution came into force, and the rights, if any, which accrued before the enforcement, of the Constitution, could not be attacked as being contrary to the fundamental rights of the citizens, as such fundamental rights were brought into existence after the coming into force of the Constitution. It was finally argued that the custom was unreasonable, and the decision of the Chief Court of Jaipur was not correct. It may be pointed out, as held in various case that this Court is not bound by the view of law taken by any Chief Court or High Court of a covenanting State, and the question can be re-examined. The Chief Court upheld the validity of the demand of Moharana on the ground that in the United Provinces a village proprietor could lavy wajib-ul-arz and the principle behind the validity of the claim was that the site in villages belonged to the proprietor of the village, and until the site had been absolutely sold, the title to the site continued to exist in the village proprietor, and the person building a house on the site only enjoyed the site under a licence from the village proprietor, and therefore, when the owner of the building transferred the village proprietor received a portion of the sale price as consideration for the successive owners of the house on enjoy the site. The learned Judges, who decided that case, have not referred to the decisions in the United Provinces, in which such right had been upheld; but learned counsel for the respondent has been able to lay his hands on such cases. He has relied on Kedar Nath and another vs. Datta Prasad and another (1) (AIR 1922 All. 370.), (in which there is a further reference to two cases Heera Ram vs. Deo Narain Singh (2) ( (1867) N. W. P. H. C. R. 63 (F. B.)), and Dhandei Bibi vs. Abdur Rahman (3), and Beni Madho and another vs. Zahurul-Haq and others (4 ). In Heera Ram vs. Deo Narain Singh (2), it seems to have been taken for granted that the village proprietor was entitled to haq-i-chaharum or one-fourth of the sale proceeds on a sale, and the only dispute was as to whether the transaction amounted to a sale. In Beni Madho and another vs. Zahurul-Haq and others (4) (ILR 3 All. 797.) it was held that haq-i-chaharum was not leviable on sales through court. In Dhandei Bibi vs. Abdur Rahman (3) (ILR 23 All. 209.), both the vendor and the vendee were held liable to pay haq-i-chaharum. In Kedar Nath vs. Datta Prasad Singh (1) the vendee was held liable to pay the amount of haq-i-chaharum. In none of these cases the question was decided whether the custom was reasonable, in so far as it permitted the levy of haq-i-chaharum not only on the site, but also on the value of the structure over the site. The principle accepted by the Chief Court, wile upholding the levy of Moharana was that the right to village site continued to exist in the village proprietor unless it was sold to any person by the Thikanedar. This principle could only validate a right to recover Moharana in respect of the value of the site. If the proprietor, after selling the site to somebody, does not retain any further interest in the property, it would be unreasonable to hold that the village proprietor has any right vested in him in respect of the structures constructed by the occupant, who has also a right to sell the structures. The jump from the right to recover Moharana on transfer of sites not sold by the Thikanedar to anyone, to the right to recover Moharana on the value of the structure is not supported by anything in the judgment, and if such a right existed by custom, it was certainly unreasonable. The Thikanedar having done nothing in bringing into existence the structure over the site cannot be said to lose any right or suffer any detriment by transfer of the structure. So far as the site is concerned, if it be assumed that, unless it had been sold by the Thikanedar the site continued to belong to him, he may be permitted to enjoy the benefit which the occupant may derive by its sale to a third person, and in that view a division of the sale price between the occupant and the village proprietor may be justifiable. We, therefore, hold that the custom of levy of Moharana on sale by one occupant to another on the sale value of site situated in the Pana of a Thikanedar in Jhunjhunu and remaning unsold by the Thikana is valid; but the custom where by the Moharana is chargeable on the value of structures (constructed by occupants on such site) at the time of their sale to another person is not valid. Accordingly the plaintiff's claim in respect of Moharana at the rate of 15% of the sale value of the site is reasonable, but the claim of Moharana on the value of the structure sold is unreasonable. As a result of this finding, the respondent's claim is upheld only to the extent of Rs. 75/ -. The rest of the claim is dismissed. The appeal is partly allowed, and the decree of the lower court is modified by reducing the amount decreed in favour of the respondent from Rs. 225/- to Rs. 75/- only. In view of the special circumstances of the case, the parties will bear their own costs throughout. .;