Ramdas Sha vs Damodar Prashad and Others

Ross, J.—These are two appeals against the decrees of the Additional Subordinate Judge of Saran reversing the decisions of the Munsif of Chapra in two suits brought by the plaintiffs with regard to two small plots of land. Second Appeal No. 51 of 1921 relates to Title Suit No. 538 of 1918 the subject of which was 14 kathas of land, bearing Survey Plot No. 772. Second Appeal No. 248 of 1921 relates to Title Suit No. 539 of 1918 which was concerned with a plot of land measuring 14 kathas 6 dhurs and bearing Survey Plot No. 724. The allegations in the plaints in the two cases were similar and both cases were dealt with in a single judgment on appeal by the Subordinate Judge and I shall deal with both in this judgment.

The case for the plaintiffs was that the land was gairmajrua am and that the people of the village used the land for the purposes of khalihan and for putting up marriage prosessions coming to the village, and for playing Ramlila and for tying cattle in the rainy season. The defence was that the land was waste land which the defendant No. 1, the landlord, was entitled to settle and that she had in fact settled it with defendant No. 2. The plaintiffs sought a declaration of their rights to and recovery of possession of the land, and in Suit No. 539 a mandatory injunction on the defendant No. 2 to remove certain structures which he had built on the land.

The Munsif dismissed both the suits, but the Subordinate Judge passed a decree declaring the rights of the plaintiff and restoring them to possession. The finding of fact on which his decision is based is that the villagers, without interruption by the malik, have been using the land for performing Ramlila, for putting up marriage processions, for keeping khalihans and for tying cattle during the rainy season from time immemorial. Now, an objection is taken to the form of the decree. It is conceded by the learned Vakil for the respondents that this finding of fact does not entitle the plaintiffs to a decree for possession. The land belongs to the landlord and the plaintiffs have certain rights over it. This does not entitle them to the possession of the land but only to a declaration of their rights. It is said that there should also be an injunction, but no injunction was prayed for in Suit No. 538, while the mandatory injunction asked for in Suit No. 539 was not apparently pressed in the Courts below because there is no finding that the houses said to have been built on this plot of land make it impossible for the plaintiffs to exercise their customary rights. The only decree, therefore, that can be passed in this case is a decree declaring the rights of the plaintiffs.

The grounds on which the decree passed by the Subordinate Judge is attacked are, first, that the rights found cannot be an easement; that even if they do amount to an easement they will not prevent the landlord from developing and settling the land; and, lastly, that the issue of limitation has not been tried and, therefore, the case must go back. With regard to the last point, it is true that an issue of limitation was raised but there is nothing to show in the judgments of the Courts below that this point was pressed; nor does there seem to be any substance in the issue because, according to the defendants'' own case, the land was settled in 1325, the year in which the suit was brought, and as this is plainly a suit in which the period of limitation is 12 years there can be no substance in the argument and I think it unnecessary to direct a remand of the case for a determination of the issue.

I now turn to the substantial question in the case. It is conceded by the learned Vakil for the respondents that it is not a case of easement. The argument on behalf of the appellants is, therefore, admitted. The plaintiffs'' rights do not amount to an easement and they do not prevent the landlord from developing and settling the land. Effect has been given to this argument by removing that part of the decree which gave the plaintiffs'' possession. There is nothing to prevent the landlord from settling the land and developing it, so long as he does not interfere with the rights which the plaintiffs have acquired. The learned Vakil for the respondents puts his case on the basis of custom. That such customs as are here claimed have been recognised in India is clear from the reported cases. Thus, in Mohidin v. Shivlingappa 23 B. 666 at p. 667 : 1 Bom. L.R. 170 : 12 Ind. Dec. (N.S.) 445, then right of burial within a limited area of land was recognised as a good custom Similarly, in Kuar Sen v. Mamman 17 A. 87 : A.W.N. (1895) 10 : 8 Ind. Dec. (N.S.) 381, the custom of exhibiting tezias and alums and using a certain Chabutra as a sitting place during Moharram was recognised as a good custom. In Bhola Nath Nundi v. Midnapore Zemindavy Co. 8 C.W.N. 425 : 31 C. 503 : 31 I.A. 75 : 14 M.L.J. 152 : 8 Sar. P.C.J. 611 (P.C.) the right of pasturage in the land of another was recognised. It is said that the case has not been treated as a case of custom; that the learned Subordinate Judge has alternated between two views: in one part of his judgment he seems to treat the land as village common in which the plaintiffs had proprietary rights and in another part he has treated their rights as an easement, but he has nowhere directed his attention to a consideration of the essentials of custom. It is true that the Subordinate Judge is not very clear in his treatment of the case, but, as he says distinctly enough that it is not a case of easement. His finding, which I have already quoted contains ail the necessary elements. He finds what rights the plain tiffs have been exercising from time immemorial. It is contended on behalf of the appellants that this custom is not a good custom because it is unreasonable and uncertain. There is no uncertainty about it, because the elements have been specifically set forth in the plaint and specifically found in the judgment. It is said to be unreasonable because it excludes or may exclude the landlord from the use of his land altogether. A similar objection was taken in the case of Hall v. Nottingham (1876) 1 Ex. D. 1 : 45 L.J. Ex. 50 : 33 L.T. 697 : 24 W.R. 58, where the custom set up was the custom for the inhabitants of a parish to enter upon certain land in the parish, and erect a Maypole thereon, and dance round and about it, and otherwise enjoy on the land any lawful and innocent recreation at any time in the year; but there it was found that such a custom was neither too general nor uncertain nor unreasonble. I see nothing unreasonable about the custom claimed in this case.

The result is that the appeals must substantially fail, but there must be a variation in the form on the decree. The suits are decreed with costs to this extent that the rights of the plaintiffs to perform the Ramlila and to put up marriage processions and to have their khalihan and tie cattle during the rainy season on the land in suit are declared. There will be no costs of the appeals.