JUDGMENT S.J. Hyder, J. - Custom may he legally enforceable is beyond the pale of doubt. When a custom is recorded in the Wajib-ularz or Dasturdehi prepared ai the time of the settlement and has been enforced repeatedly by the courts of law, its existence cannot be doubted. It is some times said that custom is based on the morality of the society and its convenience. However John Stuart Mill in the Introduction to his classical work 'On Liberty' has stated : Wherever there is an ascendant class, a large portion of the morality of the country emanates from its class interest and its feelings of class superiority." Later on in the said work, he has observed: "Despotism of custom may he the standing hindrance to human advancement." 2. I shall proceed with the subject later. Plaintiff Gauri Shankar Dubey, whose heirs are the appellants before this court. commenced the suit giving rise to this appeal early in the year 1950. He claimed a decree for the recovery of a sum of Rs. against the defendants-respondents. The suit was decreed by the trial court with interest pendente lite and future at the rate of 2% per annum. On an appeal preferred by the contesting defendants-respondents, the court of appeal reversed the decree of the trial court and dismissed the suit of the plaintiff. The heirs of the plaintiff have now approached this court in second appeal. 3. There is no dispute between the parties about the facts of the case. Defendant No. I was the owner of a house situate in plot No. 571 at village Pukhrayan. Mohalla Parag Datt Jhaulal, Pargana Bhognipur, district Kanpur. He transferred the house to the contesting defendants-respondents for a sum of Rs. 25,000/- by means of a sale deed dated Aug, 6, 1949, which was registered on Aug. 10, 1949. In the Wajibularz or Dasturdehi it is recorded that if any person in occupation of a house as a Raiyat transfers his house, one fourth of the sale consideration shall be paid to the Zamindars. The plaintiff was a Zamindar and original defendant No. 1 is alleged to be a Raiyat. 10, 1949. In the Wajibularz or Dasturdehi it is recorded that if any person in occupation of a house as a Raiyat transfers his house, one fourth of the sale consideration shall be paid to the Zamindars. The plaintiff was a Zamindar and original defendant No. 1 is alleged to be a Raiyat. It was on the basis of custom recorded in the Wajihularz that the plaintiff claimed a money decree for the amount mentioned above Village Pukhrayan, it is again admitted, had been raised to the status of a Town Area before the execution of the sale deed dated Aug. 6, 1949. 4. Defendant No. I did not contest the suit. The allegations made in the plaint were traversed by the vendees alone who have also opposed this second appeal. The trial court relied on the entry in the Wajihularz or Dasturdehi. It also took into account a number of decrees passed on the basis of the custom so recorded. It was also of the view that the custom was not unreasonable and the fact that village Pukhrayan had been raised to the status of a Town Area did not make any difference and the plaintiff's claim was well founded. The Court of Appeal came to the conclusion that the documents on record proved that the custom relied upon by the plaintiff had been consistently enforced by the courts including this court up to the year 1937. It was, however, of the opinion that since village Pukharayan had become a Town Area in the year 1948. plaintiff was not entitled to rely on the custom which applied only to the village. The court of appeal was also of the view that the custom relied upon by the plaintiff had become unreasonable and could not be enforced. The correctness of the findings recorded by the court of appeal have been assailed before me by the learned counsel appearing for the appellants. 5. In Halsbury's Law of England, 4th Edn. Vol. 12, the essential attributes of a valid custom are stated thus in para 406. "To be valid, a custom must have four essential attributes: 1. It must he immemorial: 2. It must he reasonable: 3. It must he certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect: and 4. "To be valid, a custom must have four essential attributes: 1. It must he immemorial: 2. It must he reasonable: 3. It must he certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect: and 4. It must have continued without interruption since its immemorial origin. 6. The debate in the instant case has primarily hinged on the second condition enumerated in the passage just quoted. The first court of appeal, in support of the view taken by it on this aspect of the case, has relied on the Full Bench decision of this court in Ram Kishore Jaiswal v. B. Kavindra Narain, AIR 1955 All 59 . In that case, Malik, C. J. speaking for the Full Bench of five Judges, observed as follows (at p. 61):- "Before we deal with this question. we must point out that in our view the custom relied on is a most unreasonable custom under which the Zamindar can claim not only one fourth share of the price of the Prajauti land but also a one-fourth share of the price of the building that may have been put up on the land by the Parjotdar and this he is entitled to get every time the house is sold. What was the origin of this custom we do not know. It may have some thing to do with the levy of `Chauth' by the Mahrattas on the fall of the Mughal empire." 7. in the case of Ram Kishore Jaiswal (supra) the questions referred for the opinion of the Full Bench by a Division Bench of this court were formulated thus (at p. 61) "1. Having regard to the terms of the "Wajihularz" of 1853 relating to village Jaitpura, pargana Dihat, District Banaras, on the record of Suit No. 291/43 of the Court of City Munsif of Banaras, are the plaintiffs as plot proprietors not entitled to `Zar-i chaharum' on the sale of houses situated on the land belonging to them? 2. If the plaintiffs as plot proprietors are entitled to `Zar-i-Chaharum, does the right accrue only on voluntary or also on compulsory sales?" 8. Both the questions referred to the Full Bench were answered by it in the negative. 2. If the plaintiffs as plot proprietors are entitled to `Zar-i-Chaharum, does the right accrue only on voluntary or also on compulsory sales?" 8. Both the questions referred to the Full Bench were answered by it in the negative. It is evident that the question of the reasonableness of the custom of Zari' Chaharum, relied upon by the plaintiff of that case, was not required to be determined by the Full Bench. Learned counsel for the appellants has contended that the said observations are in the nature of an ohiter and cannot hind this court. 9. On behalf of the appellants. ins attention had been invited to a Single Judge decision of this Court in Lala Badri Prasad v. Gauri Shankar, AIR 1973 All 162 . In that case also, the suit of the plaintiff was based on the custom of Zari-chaharum. I am informed that the plaintiff of that case was also this plaintiff in the suit giving rise to the present second appeal and that the said suit also was based on the Haq-Zari-Chaharum consequent on a sale of a house in village Pukharayan by it Raiyat. In that case also, reliance was placed on the observations of the Full Bench in the case of Ram Kishore Jaiwal, (AIR 195 All 59) (supra). The learned Single Judge quoted the passage from the judgment extracted above and carte to the conclusion that the said observations were in the nature of an obiter. The Single Judge was further of the opinion that the custom of Hay-Zari-Chaharum relied upon by the plaintiff of that case was reasonable. The decision in Lala Badri Prasad's case no doubt lends powerful support to the submission of the learned counsel for the appellants. 10. I have given my respectful consideration to the views expressed by the learned Single Judge in the case of Lala Badri Prasad tsuprat and I am unable to share the opinion expressed by him. In this situation, I would have ordinarily reterred the present second appeal for the consideration of a larger Bench. I however, feel, myself relieved of this responsibility as, in my opinion the learned Single Judge has not considered the earlier decisions of this Court in reaching the conclusion arrived at by him. 11. Reverting to the observations of John Stuart Mill contained in the opening paragraph of this judgment. I however, feel, myself relieved of this responsibility as, in my opinion the learned Single Judge has not considered the earlier decisions of this Court in reaching the conclusion arrived at by him. 11. Reverting to the observations of John Stuart Mill contained in the opening paragraph of this judgment. it max he pertinent to state that Mill along with his senior Jeremy Bentham were both exponents of a social system based on laissez faire. Like Adam Smith, who propounded the economic theory of laissez faire in his well know n work "Wealth of Nations", Mill worked principally in the sphere of political science. He and Jerenis Bentham are considered to be the founders of the utiliterian school of thought and they stood by the doctrine of the greatest good of the greatest number. 12. C. K. Allen in his well celebrated book "Law of the Making," has supported the view taken by Mill to which, reference has already been made, in these words : "The weaker members, who form the majority of society, accept these customs either because they are imposed by irresistible force, or because they suit, on the whole the general arrangements of society, which those in subordinate positions accept through vis inertiae or at least are powerless to repulse. This is very apparent in perhaps the most important body of custom which has ever existed in Europe-feudal custom". 13. C. K. Allen has devoted considerable learning in analysing the custom of Slavers. According to his views. the truth is that slavery was it custom based not upon the good of popular majority but of a ruling minority. He refers to the writing of such ancient philosophers as Plato and Aristotle and admits that they also supported the institutions of slavery. He condones the advocacy of the custom of slavery by these philosophers on the ground that they were after all the products of their own time. He also refers to the writings of Plato and Aristotle for the purpose of showing that the custom of slavery for which they stood was of a more liberal and human nature than was being practised at the time of their writings. Allen concludes by saying that ideally the minority which enforced the custom of slavery new he said to consist of the mental and moral aristocrats like Plato and Aristotle. Allen concludes by saying that ideally the minority which enforced the custom of slavery new he said to consist of the mental and moral aristocrats like Plato and Aristotle. He however, concedes that actually this minority consisted of the property owning classes and it was they who kept it so long in existence for economic reasons which were characteristic of the ancient world but by no means peculiar to it. It has to he remembered that C. K. Allen is not a Marxist. He cannot he even accused of being a fellow traveller. 14. It will he of some interest to note that the views expressed by John Stuart Mill and Proof. C. K. Allen, in so far as custom as a source of law, overlaps the Marxist theory about the concept of law. What was emphasised was that the essence of law and its origins and development cannot he understood if law is taken in isolation from economic and political life. States V. M. Chkhikvadze, in the book "The Soviet State and Law" (Progress Publishers, Moscow. "it can he understood only as a product of economic and other social conditions. It is not law that creates society, but the other way round. Property relations do not exist because there are rules of Law defining property, but, on the contrary, these rules, in their historical origins and subsequent development. are a reflection of the relations produced by the economic system. The law can never rise above a society's socio economic system." 15. In this Second Appeal, I am not concerned with the broader question as to the origin of law. The enquiry before is limited to the question as to whether custom of Haq-Zar-Chaharum was based on the economic interest of the feudal class which, as I shall presently show, was the pre-eminent class in the social fabric of India during the colonial rule. 16. It has been established by researches carried on by eminent scholars in India and abroad that before the advent of the British Rule, the land system of India was based primarily on peasant proprietorship. The proprietary rights in the land vested in the tiller of the soil and the village community as it whole and no particular individual was the primary unit of the revenue system or of the agricultural organisation. The proprietary rights in the land vested in the tiller of the soil and the village community as it whole and no particular individual was the primary unit of the revenue system or of the agricultural organisation. This arrangement subsisted in India from ancient time and continued to be enforced during the period of the Muslim rulers. It has to he admitted that Muslim conquerors did not interfere with the indigenous land system to any substantial extent. The minor variations introduced related to the percentage of revenue payable to the State and other matters of detail. True it is that revenue collectors were appointed from time to time to realise revenue from the tillers of the soil and to pay the sane to the Government. These revenue collectors were entitled to a certain percentage of the revenue realised by them. In this connection it is pertinent to note the following observation from the Report of the United provinces Zamindari Abolition Committee : "It is true that other Governments had also realised rents thought the agency of revenue farmers, but even in the worst periods of misrule their rights were strictly limited by the older prescriptive rights of the cultivators. No previous Government had made the mistake of assuming that the cultivator held his land on sufferance from the revenue farmer or that the latter had any right to demand more than the State's share of the produce. Proprietary rights had never before been conferred upon the collector of revenue to the loss and injury of the tiller of the soil." 17. The British Conquerors, for the first time, introduced into India the English landlord system in a modified form. The former revenue collectors and other persons of influence in the social fabric of India were conferred with proprietary rights in land which were taken away from the tillers of the soil. In the Zamindari Abolition Report, It is stated thus :- "Thus it was the British conqueror who created the landlords. He created them from petty chiefs and overlords, the tax-gatherers of the Mughal and Hindu emperors. He created them because they were convenient reactionary social base for establishing foreign rule over a rebellious peasantary and people." 18. In the Zamindari Abolition Report, It is stated thus :- "Thus it was the British conqueror who created the landlords. He created them from petty chiefs and overlords, the tax-gatherers of the Mughal and Hindu emperors. He created them because they were convenient reactionary social base for establishing foreign rule over a rebellious peasantary and people." 18. The Zamindari Abolition Committee Report, after making a survey of the historical material having a bearing on the question, came to the conclusion that the foreign rulers by a series of measures continued to decrease the revenue payable by the landed aristocrat while the burden on the tiller of the soil remained constant or even increased. The report says : It is a curious fact that the attention of the Government was directed mainly towards the convenience of the landed classes. A number of able administrators had from time to time pointed out that the policy followed resulted in the misery and degradation of millions of cultivators, their increasing poverty and the inefficiency of agriculture and suggestions were made for giving them security of tenure and fixing their rents for the period of settlement. It is incredible but true that the only practical answer to these difficulties that was though of was greater leniency in the treatment of Zamindars on the assumption that if the Zamindars were prosperous and contented their tenants would also be well off, the Zamindars would he encouraged to clear away the jungle, bring waste land under cultivation and effect other improvements and that they would, in their own self interest, make fair bargains with the cultivators, leaving them a sufficient margin of profit to provide both the means and the motive for efficient cultivation and improvement of land. This assumption which is manifestly wrong and which has been disproved at every stage by the whole course of economic history appears to have been the fundamental basis of British Revenue policy." 19. The passage quoted above from the report of the Zamindari Abolition Committee underlines two aspects of the matter. In the first place, the authors of the report point out that the revenue policy pursued by the British rulers was heavily loaded in favour of the Zamindars. The Second assumption is that this policy was pursued in the hope that it would yield better dividends and promote agricultural development. In the first place, the authors of the report point out that the revenue policy pursued by the British rulers was heavily loaded in favour of the Zamindars. The Second assumption is that this policy was pursued in the hope that it would yield better dividends and promote agricultural development. The assumption made, if I may say so with respect, is clearly erroneous and runs counter to the earlier observations made in the report at p. 112 where it is stated that the Zamindari system was introduced by the foreign rulers in order to create a convenient reactionary social base for establishing foreign rule over a rebellious peasantry and people. The conclusion is fortified from a passage in the speech of Lord William Bentinck who was Governor General of India from 1828 to 1835. The said speech is to be found in the book of Sir A.L. Kaith "Speeches and Documents on Indian Policy", 1750 to 1921 Vol. I p. 215. "If security was wanting against extensive tumult or revolution, I should say that the permanent Settlement, though a failure in many other respects and in most important essentials, has this great advantage at least, of having created a vast body of rich landed proprietors deeply interested in the continuance of the British Dominion and having complete command over the mass of the people." 20. What has been stated by Lord William Bentinck with regard to the area permanently settled applies with full vigour even to other areas where Zamindari System had been introduced and settlements made with the Zamindars, ignoring the interest of the actual tillers of the soil. 21. This alliance of British with landlordism constituted the landlords into an ascendant class in the words of John Sturat Mill. The will of the feudal landlords was readily enforced by the British rulers. It is. therefore, not surprising that the Wajibularz or Dasturdehi contained recitals of a number of customs which generally speaking favoured the landlord and ran against the interest of the Raiyat. The custom of Haq- Zari-Chaharum is one such custom which is in favour of the landlord and against the interest of the Raiyat. 22. The colonial rulers saw to it that the feudal system introduced them after the advent of their rule in India-was founded on firm basis and mainly on the pattern of the feudal system in England and the continent of Europe. 22. The colonial rulers saw to it that the feudal system introduced them after the advent of their rule in India-was founded on firm basis and mainly on the pattern of the feudal system in England and the continent of Europe. The judges of the High Court, had to enforce the will of the law giver. It is, therefore, not surprising that a large body of decided cases can be found in the law reports in which customs recorded in the Wajibularz or Dasturdehi were actually enforced. 23. India became independent in 1947. The advent of independence unleashed force of rapid change. The reactionary citadel of feudalism was the first to come under attack. Just a year before independence, the U. P. Legislative Assembly passed the following resolution on Aug. 8. 1946. "This assembly accepts the principle of the abolition of the Zamindari system in this province which involves intermediaries between the cultivator and the State and resolves that the right of such intermediaries should be acquired on payment of equitable compensation and that Government should appoint a committee to prepare a scheme for this purpose." 24. The Committee appointed in pursuance of the resolution quoted above, submitted its report in July, 1948. On the basis of this report, a Bill was introduced in the United provinces Legislative Assembly on July 7, 1947. After some amendment, it was passed by the State Legislature on Jan. 16, 1951 and it received the assent of the President on Jan. 24, 1951. This legislative measure is U. P. Zamindari Abolition and Land Reforms Act (U. P. Act No. 1 of 1951). The Act provided for the abolition of the institution of Zamindari and it also introduced far reaching changes in the system of land tenure in the State. 25. At this stage, it may be pointed out that the Act was not the result of a vendetta. The fact that the institution of Zamindari was an anachronism and the Land system on which it was founded was an obstacle in the progress of the country has been founded by a large number of scholars belonging to different shades of opinion such as Professor Radhakamal Mukerjee, Professor K. T. Shah and Palma Datt. It also receives support from the findings of a Commission appointed by the British Government known as the Floud Commission. It also receives support from the findings of a Commission appointed by the British Government known as the Floud Commission. The Zamindari system was also rejected by the electors, in the General Election held to the U. P. Legislative Assembly in 1937 and again in 1946. 26. Two questions, therefore, arise for decision. In the first place, I have to consider whether the custom of Haq-Zari-Chaharum, on which the plaintiff founded his claim for a decree in the present suit, is reasonable? The other question which requires consideration is whether Hay Zari Chaharum could be claimed on the basis of a sale deed dated Aug. 6, 1949 when the Zamindari System itself was in the throes of death and was gasping for breath'. 27. Since the two questions are interlinked, 1 will discuss them together. The single Judge who decided the case of Lala Badri Prasad, (AIR 19-3 All 162) (supra) has held the custom to be valid on the ground that the reasonableness of the custom had to he judged in the light of the notions as they existed at the time of the inception of the custom and, not according to the notions of the society which existed, at the time when the suit in which reasonableness of the custom is called in question. I must concede that the view taken by the learned Single Judge is in accordance with the decisions of the British Courts which have also been followed in some Indian decisions. For reasons which I shall state presently, I am not inclined to agree with the view taken on this point in the case of Lala Badri Prasad (supra). 28. The well known Urdu poet lgbal, whose birth anniversary celeberations were held in India a few years back has, rightly pointed out in one of his couplets that the only permanent feature of life is the law of change. Human society is a living organism. It changes with the passage of time. Legal concepts like any other concepts in human society, are always changing according to the needs of the time. They must conform to the ever changing requirements of the society and the courts of law cannot close their eyes to such changes. In the case of Basai v. Hassan Raza Khan, AIR 1963 All 340 . Legal concepts like any other concepts in human society, are always changing according to the needs of the time. They must conform to the ever changing requirements of the society and the courts of law cannot close their eyes to such changes. In the case of Basai v. Hassan Raza Khan, AIR 1963 All 340 . Dhawan, J. has quoted a passage from Goathe's well known work `Faust' which reads thus : "Know the nature of science. Laws and rights are transmitted like an eternal disease. They trail from generation to generation, and move imperceptibly from place to place. Reason becomes nonsense: beneficence calamity woe upto your that you are a grandson." 29. I loathe the idea of deciding a case according to the notions which have become antiquated and are out of tune with the concept of modern society while deciding a question of reasonableness of a custom. In my opinion, a custom can only be held to he reasonable if it conforms to the existing notions of reasonableness. The view which I am taking is particularly in accord with the needs of a developing country. 30. In the case of Mookka Kone v. Ammakutti Ammal, AIR 1928 Mad 299. Kumaraswami Sastri, J, Speaking for the Full Bench. observed. "Indian courts are courts of law as well as of equity and they ought not to give effect to a custom which the growing consciousness of the community in which it is said to have prevailed is prepared to treat it as unsuited to modern conditions ................ The Judicial recognition of a custom which a community is prepared to jettison is neither necessary nor just." 31. The matter was considered by Dhawan, J, in the case of Basai v. Hasan Raza Khan, ( AIR 1963 All 340 ) (supra) at length. In that case the plaintiff had claimed a relief for mandatory injunction on the basis of custom of pardah. Reliance was placed on his behalf to support the custom in question on the case of Gokul Prasad v. Radho, (1888) ILR 10 All 358. Dhawan, J. relied on a number of decisions and came to the conclusion that in view of the changed social conditions prevailing in the country, the custom of purdah relied upon by the plaintiff of that case could not be enforced as it had become unreasonable. Dhawan, J. relied on a number of decisions and came to the conclusion that in view of the changed social conditions prevailing in the country, the custom of purdah relied upon by the plaintiff of that case could not be enforced as it had become unreasonable. As a result of the analysis of decided cases, it was held that the question of reasonableness had to he decided according to the notions of the society prevailing at the time when the question of reasonableness of the custom comes for decision before the court and not according to the notions which existed in a bygone age. The trend of the modern decisions of the courts in this country is in accordance with this view. 32. I have already held that the passage extracted from the judgment of the Full Bench in the case of Ram Kishore Jaiswal, AIR 1955 All 59 ) (supra) was obiter. However, it is one thing to say that an obiter contained in the judgment of the Full Bench is not binding on a Single Judge. It is quite another thing to regard an obiter as devoid of all persuasive force. The learned Single Judge has adopted the latter course in the case of Lala Badri Prasad, ( AIR 1973 All 162 ) and has ignored the obiter in the case of Ram Kishore Jaiswal. Even an obiter dicta of a distinguished Judge or Judges has the persuasive value. Malik, C. J. with whose observation I am concerned in this second appeal, is undoubtedly one of the eminent Judges of this Court. The view taken by him about reasonableness of the custom of Haqzari Chaharum is supported by four other Judges of this Court. I feel it difficult to differ from this view expressed by him when the same accords with reason and common sense. It is indeed difficult to justify the custom of Haq-Zari Chaharum which entitled a Zamindar not only to receive one fourth value of the land but also of the super structures which have been raised by the Raiyat at his own expense. 33. It is further to be remembered that village Pukhrayan is situate in the district of Kanpur. There is no evidence on record from which the distance of the village from the city of Kanpur may he worked out. 33. It is further to be remembered that village Pukhrayan is situate in the district of Kanpur. There is no evidence on record from which the distance of the village from the city of Kanpur may he worked out. It cannot, however, be ignored that the city of Kanpur developed industrially to a considerable extent and has come to be regarded as the largest industrial city of the State. The growth of industry in the city of Kanpur ipso facto has resulted in the growth of satellite townships. As a result of the increased industrial activity, the prices of urban property has considerably multiplied. The custom of Haq-Zari Chaharum came into existence at a time when the Raiyat by and large had thatched houses which were transferred by them for paltry amounts. It was in this state of affairs that one-fourth of the sale proceeds was given to the Zamindar according to the custom. In the result, he got hold of a paltry amount consequent on the transaction of sale. In the changed situation indicated above, the property has been admittedly sold for a sum of Rs. 25,000/-. In my view, it would be highly unreasonable to give effect to the custom in the changed situation and permit the Zamindar not only the benefit of the price of the land but also a share in the price of super-structure. 34. In so far as the English decisions on this point are concerned, it may he stated that they have no binding force on the courts of this country. Moreover, the courts in England have themselves held that in determining the question as to whether a contract is void on the ground that it is opposed to public policy, what has to be seen is the policy of the day and not the policy of an age, which has long venished (see Nordenfelt v. Maxim Nordenfelt Company*). It has to be remembered that the rejection of a proved custom on the ground that it is unreasonable is after all a particular application of the doctrine of public policy. I do not find any consistency between the two sets of decisions rendered by the English Courts. 35. It has to be remembered that the rejection of a proved custom on the ground that it is unreasonable is after all a particular application of the doctrine of public policy. I do not find any consistency between the two sets of decisions rendered by the English Courts. 35. In the result, I am of the opinion that I the custom of Zarichaharum on the basis of which the suit giving rise to this second appeal was filed was unreasonable and was not legally enforceable when the suit was filed. 36. There is another ground on which this second appeal must founder. The contesting defendants-respondents had specifically pleaded in their written statement that their transferor was an absolute owner of the property conveyed by him to the contesting defendants-respondents. Assuming for the sake of argument that the custom of Haq Zari Chaharum is a valid custom, it was necessary for the plaintiffs-appellants to prove, in the circumstances of the case, that the transferor of the contesting defendants respondents was his Raiyat. He has led no evidence to prove this fact and there is no finding recorded by the trial court or by the court of first appeal that the transferor of the contesting defendants respondents was Raiyat of the plaintiff. Every one who resides in a village is not necessarily a Raiyat of a Zamindar. The term `Raiyat' has a narrow connotation. It includes within its ambit only an agricultrist or a workman whose services are necessary to sustain the village economy. In the absence of any material that the transferor of the contesting defendants-respondents fell under anyone of these categories, the custom of Haq Zari Chaharum could not be invoked by the plaintiffs-appellants. In the case of Amba Sahai v. Gopeshwar Babu Mehra, AIR 1953 All 607 , a Division Bench of this Court (at p. 607) has observed as under. "In an agricultural village, the Zamindar is the owner of every inch of the land. If a resident is an agriculturist or is a workman whose services are needed in the interest of the village community, the presumption is that such a person occupies his house with the leave and licence of the Zamindar and is therefore a licensee. But if the occupier ut the house is neither an agriculturist nor a person such as described above, his occupation is not presumed to be by leave or licence. But if the occupier ut the house is neither an agriculturist nor a person such as described above, his occupation is not presumed to be by leave or licence. He will then be deemed to he in occupation by adverse possession." 37. Since the plaintiffs-appellants failed to prove the essential clement which was necessary to be established to sustain their claim, the suit filed by them was not legally maintainable. 38. The result is that this second appeal fails and is hereby dismissed. There shall, however, he no order as to costs.