JUDGMENT : RICHARDS, J. This was a suit by the plaintiff for the preemption of a house in Benares. 2. His claim is based on a local custom said to exist in Benares and in a particular muhalla where the premises are situated. The custom is very clearly and properly stated in para. 2 of the plaint. 3. If this custom as alleged had been proved, the plaintiff would clearly be entitled to succeed in the present suit. In para. 4 of the plaint the plaintiff alleges that he complied with the formalities as to demands required by Muhammadan law although the particular custom existing in the muhalla did not render such demands necessary. This paragraph is somewhat remarkable and might perhaps suggest that the custom was really the. Muhammadan custom but that the plaintiff was not quite sure whether he would be able to show when the case came for trial that he had sufficiently complied with the requirements of that Law. 4. The Court of first instance found in favour of the plaintiff but it does not specifically find what the custom was or if there was a custom which prevented one person from selling without first offering the premises to the person or persons having a right to pre-empt. 5. The lower appellate Court found that a custom of pre-emption was proved, but that there was no sufficient evidence that the custom was anything more than the Muhammadan custom, in which case the formal demands were necessary and these he held had not been complied with. 6. Whether or not a custom exists is a question of fact and prima facie at least the decision of the lower appellate Court on this question is binding on me. Mr. Sorabji has referred to the case of Kakrala Abhayee v. Raja Verkata Papayyee Rao,[1904] I.L.R., 29 Mad., 24. In my opinion if the lower appellate Court has acted upon illegal evidence or has come to a decision upon evidence as to custom which is legally insufficient to establish a custom, the High Court could treat the question as one of law. In my opinion if the lower appellate Court has acted upon illegal evidence or has come to a decision upon evidence as to custom which is legally insufficient to establish a custom, the High Court could treat the question as one of law. Again if it appeared that the lower appellate Court had clearly from its judgment disregarded legal evidence the Court could interfere, but I do not agree with the contention that notwithstanding the lower appellate Court has heard and weighed legal evidence offered on both sides in all cases where the existence or nonexistence of a custom is the question at issue, it is the duty of the High Court in second appeal to go into and consider the evidence. I do not think that the case cited is any authority for such a proposition. I did in the present case look at the evidence and I find that witness after witness produced by plaintiff, simply stated that a custom of shafa prevailed. Two out of the three judgments are argumentative decisions of the Court rather than findings of fact and these judgments were quite insufficient to prove the custom the plaintiff alleged. Reading the judgment of the learned District Judge it is perfectly plain that he had it clearly before his mind that he was trying the issue whether or not the custom alleged in para. 2 of the plaint existed. He has found that no such custom was proved. I consider that I am bound by this finding. It is not alleged in the grounds of appeal that any legal evidence was rejected by the learned Judge. Mr. Sorabji has also referred to the case of Ghakauri Devi v. Sundari Devi[1906] 3 A.L.J.R., 338 and asked me to refer an issue as to whether or not the demands made by the plaintiffs were sufficient within the principle laid down in that case by KNOX, J. The lower appellate Court has found that the preliminary demands were not made, and there is no ground of appeal as to the finding of the lower appellate Court on this question. 7. The appeal fails and is dismissed with costs including in this Court fees on the higher scale.