1. This is an appeal against a judgment and decree, dated 28th October 1941, of the civil Judge of Meerut by which he varied a judgment and decree, dated 12th March 1941, of the Second Additional Munsif of Meerut in a suit for recovery of rent. The plaintiff is the zamindar of village Poothri in Meerut district; and the two defendants, who are two Teli brothers, reside in that village and occupy a house in the village abadi. The plaintiff alleging that the defendants are liable to pay a sum of Re. 1-4-0 per annum for chowkidara which is the ground rent for the occupation of a site occupied by the defendants and this liability arises under a custom recorded in the wajib-ul-arz of the village as also under a contract made and subsisting between the plaintiff and the defendants claimed a sum of Rs. 3-12-0 as rent due to him for the years 1345 to 1347 Fasli. The Munsif of Meerut found that the demand of the plaintiff was in the nature of a cess and as it was not recorded in the current settlement and was never sanctioned by the Government it could not be enforced in a Court of law. He further found that the contract alleged was not proved and on these findings he dismissed the claim. The civil Judge of Meerut, on appeal, agreed with the trial Court that the contract alleged by the plaintiff was not proved, but he found that the demand was in the nature of a customary ground rent and could be legally recovered from the defendants. As a result he granted to the plaintiff a decree for rent.

2. In this appeal the question for our consideration is whether the finding of the lower appellate Court that the demand was in the nature of a customary ground rent is legally correct or not. In support of the alleged custom the plaintiff produced an extract from the wajib-ul-arz of village Poothri of the year 1872 prepared at the settlement made by Munshi Nisar Ali. Paragraph 28 of the wajib-ul-arz is as follows:

Rasoom which the proprietors can validly take from the residents of the village.

From the reyaya of whatever kind which resides in this village service is taken with reference to its profession and chowkidara according to haisyat also is taken.

3. The Urdu word rasoom in the heading may, be translated as dues, but the Urdu word haisyat which occurs in the above entry is ambiguous and it may mean according to means or status of the reyaya, or it may mean according to his holding or his house in the village, or it may mean according to size of the site in his possession in the abadi. No wajib-ul-arz of this village prior to the settlement of 1872, or subsequent to this settlement was produced in the trial Court, but before the lower appellate Court an extract of the wajib-ul-arz of village Poothri of the settlement of 1342 Fasli was filed which contained the following note:

Whereas in former settlements investigation had been made with regard to customs and usages in this village other than those which are recorded in this wajib-ul-arz no investigation has been made with regard to those matters in this settlement.

4. At the trial the plaintiff also produced some evidence to show that as a matter of fact in several years between 1915 and 1930, the sum of Re. 1-4-0 per annum was paid either by the defendants or their predecessors-in-interest. To elucidate the entry in the wajib-ul-arz of 1872, we directed the parties to produce the wajib-ul-arz of the earlier settlement. Accordingly a copy of the wajib-ul-arz of the year 1859, of Munshi Mohar Singh's settlement was i produced before us. In para. 15 of this wajib-ul-arz which deals with village abadi it is stated that nothing is realised by way of rent or parjot from any reyaya. If it is realised in future, I shall get it noted in the patwari's papers.

5. And in Chap. 2 of the wajib-ul-arz which deals with matters relating to police, para. 19 regarding the chaukidar is as follows:

In this village Dharma, caste Dhanuk, resident of village Jani Buzurg, is appointed as chaukidar on receipt of Rs. 3R annually. I deposit the amount of his wages in the Tahsil Treasury at the time of every harvest along with the instalments. The mode of realisation is this that 0-7-0 per house is levied and realised from non-agriculturist ryots and Re. 1-0-6 per plough from the agriculturists residing in the village every year. Even in future I shall continue to receive the amount in this way.

6. We thus have an entry in the wajib-ul-arz of 1859 showing the origin and nature of the demand which was in relation to the salary of a village watchman followed by an entry in. the wajib-ul-arz of 1872 about the payment of chaukidara by the residents of this village according to haisyat made at a time when the salary of the chaukidar had ceased to be a charge on the zamindar of the village, and there is some evidence that subsequent to this entry from time to time in the course of 15 years the sum of Re. 1-4-0 per annum was paid by the defendants with reference to that demand. But there is no evidence that chaukidara was recovered from the reyayas generally in the village in relation to sites in their possession in village abadi and there is a concurrent finding of the two Courts below that any agreement for payment of rent did not exist between the parties.

7. The question which now arises is whether this demand is in the nature of a ground rent for occupation of sites in a village abadi, or this demand is in the nature of a cess which not having been sanctioned by the Government and not being recorded in the wajib-ul-arz of the current settlement is not legally enforceable. It is not disputed that the demand, if it is in the nature of a cess, could not be recovered in a Court of law having regard to the provisions of Sections 56 and 86, U.P. Land Revenue Act (3 of 1901) and Section 91, U.P. Tenancy Act, (17 of 1939); and it is also not disputed that, if the demand is in the nature of a ground rent for occupation of a site in the abadi by a reyaya, such a demand is enforceable, notwithstanding the statutory provisions mentioned above and can be legally recovered in a civil Court. Claims by zamindars for ground rent of sites in village abadi have often been allowed by this Court against certain sections of the reyaya of a village on the basis of wajib-ul-arz entries, but these were all cases in which the language of the wajib-ul-arz itself connected the demand with the occupation of site and suggested that the demand was a ground rent. In each one of these cases the demand was not called chowkidara but termed either as mohtarfa or ghar-ghanna or parjaut: see Abdul Hai v. Nathua ('04) 1904 A.L.J. 537; Mt. Bakshi v. Hyder Khan ('23) 10 A.I.R. 1923 All. 571; Balwant Singh v. Shankar ('08) 30 All. 235 and Muhammad Faiyaz Ali Khan v. Bihari ('18) 5 A.I.R. 1918 All. 128. In Laiqa v. Shiam Sundar ('23) 7 R.D. 182 (All.), however, Stuart J., held that an occupancy tenant residing in the village abadi was liable to pay chowkidara to the zamindar where there was a custom to that effect. That was a case also from Meerut district in which Stuart J. had to construe the wajib-ul-arz entry of the year 1278 Fasli of the settlement of Munshi Nisar Ali similar to the one in this case, but there was also evidence to show that in the settlement of 1304 Fasli which was the current settlement when that case was decided the tenants had attested the payment of chowkidara at the rate of eleven annas before the Settlement Officer and apart from the entry in the wajib-ul-arz there was a mass of evidence to show that chowkidara in the form of ground rent was charged from agricultural tenants, and both the Courts below had found in favour of the payment of customary ground rent. On the other hand, in Tirkha Ram v. Chhotey ('27) 14 A.I.R. 1927 All. 520, it was held by one of us, and also in Mohammad Uddin v. Bhupan ('35) 22 A.I.R. 1935 All. 642, it was held by Ganga Nath J. that chowkidara was not a ground rent for occupation of houses by the reyaya, but was a cess which could not be recovered by reason of Section 86, U.P. Land Revenue Act. Both these cases were from Meerut district and in both the claim was based on the wajib-ul-arz containing similar entries as we have in this case, and in the earlier case in Tirkha Ram v. Chhotey ('27) 14 A.I.R. 1927 All. 520 which was followed in the later case the previous wajib-ul-arz of 1860 of the settlement of Munshi Mohar Singh was also produced which showed that the chowkidara was originally charged by the zamindar to compensate him for the salary of two chowkidars which he had kept in the village. It was also held in Tirkha Ram v. Chhotey ('27) 14 A.I.R. 1927 All. 520 that in order to determine whether or not the amount claimed was a cess one has to look for the purpose for which the chowkidara dues were paid by the reyaya in the village; and where it was clear from the relevant provisions of the wajib-ul-arz that the amount claimed on account of chowkidara was not an amount payable by the tenants on account of the use and occupation of their houses or on account of the rent of the site of their houses, but the chowkidara dues paid by the reyaya were paid on account of the salary of the chowkidar maintained for the safety of the village, such dues could not be on account of the rent of the houses but they were a cess and were not recoverable in view of the provisions of Section 87, Land Revenue Act.

8. In Mt. Chameli v. State Kishangarh ('42) 29 A.I.R. 1942 All. 79, which was a case from Muttra district and the claim was for recovery of chowkidari dues from certain shop-keepers at the rate of eight annas per shop per annum on the basis of a custom recorded in the wajib-ul-arz of 1876-1877 A. D. Collister J., held, following Tirkha Ram v. Chhotey ('27) 14 A.I.R. 1927 All. 520 and Mohammad Uddin v. Bhupan ('35) 22 A.I.R. 1935 All. 642, that the chowkidari dues were cesses and were not legally recoverable unless sanctioned by the Government and recorded in the current wajib-ul-arz. The entry in the wajib-ul-arz of that case, which is not reproduced in the judgment, was as follows:

In this village there is no siwai income of the nature of Jalkar and bankar. There are six shops constructed by the Raja Saheb, our client, their rent is realised according to agreement from the tenants and from all the baqqals eight annas per shop is realised at the end of the year for chowkidara; and from Ujta and Tunda, Gadarias, three blankets are taken with this detail: Ujta two, Tunda one.

9. The question whether a particular demand is in the nature of a cess or is in the nature [of a ground rent falls to be determined on the circumstances and evidence of each ease, but the name by which the demand is generally known and is recorded in the wajib-ul-arz is a matter of some importance as it furnishes prima facie evidence of the purpose for which the demand is levied and helps in determining the true nature of the demand and whether it should be regarded as a cess or ground rent. It is not possible to hold as a matter of law that a demand by a zamindar for chowkidara and recorded in the wajib-ul-arz is necessarily a cess just as it is not possible to hold that the same demand is necessarily a ground rent because it is made by a zamindar from a reyaya, who occupies a site in village abadi and for which he pays no rent. The question really is a question of the construction of the entry of the wajib-ul-arz having regard to surrounding circumstances and the evidence in the case. But prima facie and in the absence c of any other evidence to explain it, the name chowkidara suggests that it is a demand in relation to a watchman employed in the village and it is not a demand in relation to the use and occupation of a site in the village abadi by the reyaya. It is possible that the word chowkidara used with reference to a demand is by itself not decisive and there may be other evidence to show in the entry itself or otherwise that the word chowkidara was used not for the purpose which the name primarily suggests but for occupation of sites of houses by non-agriculturists or by both agriculturists and non-agriculturists, but, in the absence of d any evidence connecting the chowkidara with the occupation of sites in the abadi, the prima facie import of the expression does not con-nect it with ground rent.

10. From the entry in the wajib-ul-arz of this village of the year 1872 and from the evidence of the payment of chowkidara dues between the years 1915 and 1930, by the defendants and from the fact that the defendants were occupying sites in village abadi for which they maid no rent, it was not possible to draw the inference that this customary due necessarily related to the occupation of sites in the abadi by the reyaya. And the earlier entry in the wajib-ul-arz of 1859 clearly shows that the demand arose in relation to the salary of a watchman and was in the nature of a cess, and as such was legally irrecoverable. We, therefore, allow this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance, but as the demand has been conceded by the defendants for 15 years, we direct the parties to bear their own costs in all the Courts.