Akbar Khan and ors. Vs. Lachman Rai and ors. - Court Judgment

Excerpt:

.....of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase.....orderturner, j.1. it is to be regretted that the courts below have not inquired more fully before affirming the existence of customs of which some, although no doubt they at onetime obtained in certain parts of the country, appertained to the feudal system and are disappearing with that system.2. in such cases it, is peculiarly incumbent on the courts to try the existence of the custom regarding each cess as a separate issue, and to test the parol evidence given generally as to the existence of the custom by ascertaining on what grounds the opinion of each witness is based. the most cogent evidence of custom is not that which is afforded by the expression of opinion as to the existence, but by the enumeration of instances in which the alleged custom has been acted upon, and by the proof afforded by judicial or revenue records or private accounts and receipts that the custom has been enforced.2. it should also have been specifically determined on what castes or classes of tenants custom imposes a cess claimed if the existence of the custom is proved. again, acustom to be good must be definite, the size of the pot of sugar and the basket of cow-dung is left uncertain, as are also.....

Judgment:

ORDER

Turner, J.

1. It is to be regretted that the Courts below have not inquired more fully before affirming the existence of customs of which some, although no doubt they at onetime obtained in certain parts of the country, appertained to the feudal system and are disappearing with that system.

2. In such cases it, is peculiarly incumbent on the Courts to try the existence of the custom regarding each cess as a separate issue, and to test the parol evidence given generally as to the existence of the custom by ascertaining on what grounds the opinion of each witness is based. The most cogent evidence of custom is not that which is afforded by the expression of opinion as to the existence, but by the enumeration of instances in which the alleged custom has been acted upon, and by the proof afforded by judicial or revenue records or private accounts and receipts that the custom has been enforced.

2. It should also have been specifically determined on what castes or classes of tenants custom imposes a cess claimed if the existence of the custom is proved. Again, acustom to be good must be definite, the size of the pot of sugar and the basket of cow-dung is left uncertain, as are also the times of rendering these alleged dues.

3. That the claims may be more thoroughly tried, we set aside the decrees of both Courts, and direct the Court of First Instance after framing specific issues to re-try the suit. The costs incurred hitherto will abide and follow the result.