Bikoo Mahton and Others vs Narayan Sahu and Others

Ross, J.—The allegations in the plaint are these: The plaintiffs are Istimrari Moharraridars and Thikadars of Mouza Saidpur Soniawan. In the village there is a plot of gair mazrua land belonging to the plaintiffs, an area of 1.5 acres with which the defendants have no concern. Since the 5th of March, 1919, the defendants had been digging and taking out earth from this land without leave of the plaintiffs and without any right. The plaintiffs claimed a Seclaration, that the defendants had no right to dig and take earth out of this land and an order to the defendants to fill up the ditch, and damages and an injunction. The defence, so far as is now material, is that the plaintiffs are not the whole body of proprietors of the village and the suit is, therefore bad for defect of parties; and that defendants, who are seven tenants of the village, and their ancestors, have been from time immemorial digging and taking earth from the land in suit, whenever required, without leave of the proprietors and that they have a right to do so; that their houses are situated near the land in suit and the village is visited by flood each year whereby their houses are damaged and they dig earth from the land for their repairs.

The Munsif held that although the plaintiffs were not proprietors of the whole village, they were in possession of it; but their lessors ought to have been made parties to the suit because two of the leases, under which the plaintiff held, reserved to the lessors all oases of dispute about title; and that by reason of the provisions of Order I, Rule 9, the suit was nevertheless maintainable. The Subordinate Judge on appeal held that; the plaintiffs represent the entire body of landlords.

The learned Counsel for the defendants, who are the respondents in this appeal, relied on the decision in Madan Mohan Chattopadhya v. Akshoy Kumar Baruri 14 C.W.N. 15 and contended that no decree on an easement could be passed in the absence of some of the servient owners. That was a case in which the persons claiming the easement were plaintiffs. Here the plaintiffs are the servient owners and, although those proprietors, who are not parties, may not be bound by the decree, there is nothing to prevent the Court from adjudicating on the rights of the parties actually before it.

On the question of substance the Munsif believed the witnesses for the defence, that the defendants had been digging and taking earth from this land without protest by the proprietors for more than 20 years. He" also held that it was natural for them to dig earth from this land near their houses to repair them and that they had a right to do so. He further held that although there were embankments on the sides of the ditch in suit, which would be damaged if the ditch were dug to the depth of two men''s height, yet as the ditch was only breast deep, or the depth of one man''s height, the plaintiffs had sustained no injury. He, therefore, dismissed the suit. The Subordinate Judge on appeal held that the village community can exercise common rights in respect of the disputed land and that the common use that is made of this land, is to take earth from it for the purposes of occasional repairs of their houses when damaged by a heavy flood; that the plaintiff had no exclusive right of possession on the land and that the embankments were in no danger of collapse. He dismissed the appeal. It is now contended on behalf of the plaintiffs that the taking of the earth is not an easement but a profit a prendre and cannot be acquired by custom which would be void for unreasonableness as tending to the entire destruction of the property; that no decided case recognises any right to make away the subject-matter of an easement of custom, and that the Subordinate Judge has not considered whether the custom is reasonable or not. In Bhola Nath Nundi v. Midnapore Zamindary Co. (1904) 31 Cal. 503 it was held that on proof of enjoyment of a right of pasturage over the waste land of the village from time immemorial there could be no difficulty in the way of the Court in finding a legal origin of the right. In Maharaj Bahadur Singh v. Gandauri Singh (1917) 2 P.L.J. 323 it was observed as follows at page 337: "It is true that we have been 3hown no case which recognises a profit a prendre in gross by custom, but the only obstacle in recognising profit a prendre in favour of fluctuating bodies is that the exercise of the custom would operate to destroy the subject-matter of the right and if in this case it can be established that the exercise of the right by the Sonthal and Ghatwals was not, under the circumstances, unreasonable, I see no reason why we cannot find in favour of custom". There is no uncertainty about the custom. The only question is whether the alleged custom is reasonable or not. I see no ground for saying that a custom by which earth is taken from a piece of waste land to repair houses in a village after inundations is unreasonable. On the contrary, it seems to me an eminently reasonable custom that the people of the village should take earth from a ditch which serves no other purpose, in order to repair their houses. It has not been shown that it is destructive of the subjects-matter. The findings of the Courts below do not indicate any such result as probable; and, in any case, the contingency seems too distant to justify the Courts in summarily putting an end to the right, as was said in Mohidin v. Shivlingappa (1899) 23 Bom. 666. The appeal is dismissed with costs.