Ranglal vs Lahshmidhar Misra and Others

Shearer, J.—This appeal arises out of a suit, the subject-matter of which is 4.15 acres of land situated in Byree, a village in the Jajpur subdivision on the main railway line. The railway station at Byree is in the immediate vicinity of the land in suit, which is part of a larger area of 7.82 acres, which, in the record of rights, is recorded as a smasan or burning ground. The proprietors of Byree is the Darpan estate, and, in 1936, the estate leased out the land in suit to one Baluram for the purpose of constructing a rice mill on it. Before granting the lease, the manager of the estate intimated to the Collector of Cuttack that the estate was prepared to set aside other land for use as a burning ground. The Collector caused a local enquiry to be made, and was satisfied that no hardship would be caused to the villagers of Byree by the exchange, and sanctioned the lease. Sometime previously, another rice mill had been constructed in Byree, and, curiously enough, the owners of that mill had also obtained a lease of a portion, but a much smaller portion, of this burning ground. One of the plaintiffs in the suit had an interest in this other mill; the other two plaintiffs were Hindu residents of Byree. The plaintiffs asked for a declaration that the land in suit belonged to the public of Byree, and it was not open to the landlord to lease any portion of it out. They also asked for an injunction to restrain the defendants from building on the land. The suit was dismissed by the learned Munsif of Jajpur, but, on appeal, was decreed by the learned Subordinate Judge. During the pendency of the suit, the defendants had completed the construction of their mill, and the learned Subordinate Judge made an order, directing that the buildings, which they had constructed, should be demolished.

At the trial, the plaintiffs adduced evidence to show that the dead body of one Binod Naik had been buried in the land in suit in 1934 or 1935. Evidence was, also, led to show that, in Byree, there are Bauris, Sabars and Kandaras, who bury their dead, and that the dead bodies of . persons belonging to these communities were, also, buried in the land in suit. The learned Subordinate Judge proceeded on the assumption that the land in suit was not merely a burning ground, but was, also, a burial ground, and, in granting the plaintiffs the reliefs for which they asked, relied on a number of decisions relating to Mahomedan grave-yards. In doing so, the learned Subordinate Judge, in my opinion, very seriously misdirected himself. In the first place, it is quite clear that, although the dead body of Binod Naik and other dead bodies may have been buried in the land in suit, it is not a burial ground in the sense in which a Christian cemetery or a Mahomedan grave-yard is. No portion of it is apparently . marked off for use as a burial ground by those communities, which are in the habit of burying and not burning their dead. The ground, in which such dead bodies are interred, is not consecrated ground,, as is a Christian cemetery, nor are the relations of the persons buried there in the habit of performing religious ceremonies at their graves, as Mahornedans are in the habit of doing. Secondly, the plaint did not contain anything to suggest that the land in suit was a burial ground as well as a burning ground. The plaintiffs based their case wholly on the circumstance that the land in suit was a burning ground and had been used as such for a very long time. It was, therefore, not open to the plaintiffs to contend, at the trial, that the land in suit was, also, a grave-yard, and that, on that ground, they were entitled to the injunction, for which they asked. In Chairman of the Howrah Municipality v. Khetra Krishna Mitra (06) 33 Cal. 1290 Asutosh Mookerjee J., relying on certain decisions of the American Courts, held that the proprietor of land might dedicate the user of it to the Hindu public of the neighbourhood for use as a burning ground. That learned Judge there observed:

An implied dedication arises by operation of law from the acts of the owner and is really founded upon the principle of estoppel; it proceeds not upon the principle that a grant has actually been made, but rather on the principle that the owner having allowed the public to enjoy the user for any particular purpose, is estopped from denying the right of the public to the enjoyment of such user.

The conclusion, to which the learned Subordinate Judge came was that, at least since 1891, and possibly, from an earlier date, the villagers of Byree" had been in the habit of burning dead bodies on the land in suit. He conceded that, since the construction of the railway station at Byree, dead bodies had also been burnt elsewhere; but he was satisfied, on the evidence, that dead bodies still continued to be burnt at times on this land. Mr. M. S. Eao, for the respondents, has drawn my attention to an observation of Sulaiman C. J. in Sheo Raj Chamar and Another Vs. Mudeer Khan and Others, . That learned Chief Justice there observed:

If a place has been used as a graveyard or a burning ghat for a sufficiently long time, there should be a presumption that it is dedicated property, and the grant is irrevocable.

The case, with which Sulaiman C. J., was dealing, was a case relating to a Mahomedan grave-yard, and the observation was in the nature of an obiter dictum. Moreover, it is not, I think, without significance that Sulaiman C. J. used the expression ''burning ghat'' and not the expression ''burning ground.'' As pointed out by Sir Asutosh Mookerjee in Chairman of the Howrah Municipality v. Khetra Krishna Mitra (06) 33 Cal. 1290 the test to be applied in deciding whether or not there has, in any particular case, been an implied dedication, is to consider what acts have been done by the owner of the land and to see whether they are of such a nature as to prevent or estop him from exercising his full rights as owner of the land. In the case, with which Sir Asutosh Mookerjee had to deal, the owner of the land had put up certain buildings for the convenience of persons burning dead bodies at the ghat, and no question arose, or could possibly arise, as to his not having dedicated the land. What had really to be decided in that case was whether there had been a dedication of the entire ownership in the land, or merely of the right of user. In the present case, what acta on the part of the proprietor of the Darpan estate or his predecessors can be relied on as going to show a dedication of the user of the land in suit for the purpose of a burning ground? Since 1891 or earlier, residents of Byree have been permitted to burn, or rather have not been prevented from burning, dead-bodies on the land in suit. At the most, one might, perhaps, infer from this that, on every occasion when such a dead body had to be cremated, the agent of the landlord granted the relations of the dead man a license to enter on the land and perform the cremation ceremony. But, even if the proprietor or his agents have, in the past, granted such licenses, there cannot possibly be any obligation on them to continue granting similar licenses in future. The learned Subordinate Judge was himself apparently of opinion that no dedication could be implied from these circumstances. What he relied on in decreeing the suit, apart from the circumstance that dead bodies had been buried in the land, was something that took place during the settlement operations of 1901. As I have already said, the land in suit was recorded in the khewat (Ex. 2). as a smasan or burning ground. Referring to the khewat (EX. 2), the learned Subordinate Judge said this:

In my opinion the reservation of the lands noted in Ex. 2 amounts to dedication or a regrant by the landlord.

It is impossible, and indeed, on the face of it, absurd to say that an act on the part of the settlement officer, in making an entry of this kind in the record of rights, was or amounted to an act on the part of the landlord, dedicating the user of this land for a certain purpose to the general public or to a certain community. It was incumbent on the learned Subordinate Judge to ascertain what exactly took place during the settlement operations, and to consider and decide whether anything was then done ''by the proprietor of the Dar-pan estate which, in law, amounted to his dedicating the user of this land to the public. It is well known that raiyats in Orissa originally had a customary right to graze their cattle on any uncultivated land in their own village. Towards the middle of the nineteenth century, however, this right began to be invaded or curtailed. For one thing, the zamin-dars, having become what they had not previously been, namely, proprietors of land in the English sense of the term, sometimes attempted to extort grazing fees from their raiyats. For another, so much land was, in certain villages, reclaimed, that there was not enough pasturage to maintain the standard of live-stock at an adequate level. In order to check these evils, the revenue authorities decided to set apart certain land for grazing purposes in every village so far as this was possible. They, also decided to set apart land for cremation purposes, and tanks to ensure a supply of drinking water. What, in effect, happened in every village, in which land was so reserved, was that the zammd&r gave an undertaking to the revenue authorities that he would not exercise the right, which he otherwise undoubtedly had, to bring any such land under cultivation and make a profit out of it. The matter is made perfectly clear, to my mind, by the conditions which were inserted in the kabuliyats, executed by zamindars after the provincial settlement. The forms of kabuliyats, then used, are to be found in the appendices to the Settlement Report of Mr. Maddox at page 265 et seq. Clause 6 of the kabuliyat is in these terms:

If any waste lands in my estate be brought under cultivation my right to receive the rents derivable therefrom without increase of revenue will continue during the currency of the settlement.

I hereby bind myself to preserve as grazing grounds, oremation grounds, and reserved tanks the plots specified on the reverse, and not to allow any person to cultivate such plots or any portion, thereof; and I will not collect any rent on account thereof, so long as this lease continues in force. I also bind myself not to collect any money as grazing charge in respect of any of the aforesaid plots, and to take action in the Courts to eject trespassers from the plots hereby reserved, if the Collector require me to do so.

Clause 11 runs thus:

On breach of any of the above conditions, or on failure to perform any of the duties imposed upon me by the above ten clauses, I hereby acknowledge on behalf of myself, my heirs and representatives that in addition to any other penalties to which I may be liable, the Collector may, with the sanction of the Board of Revenue, take my estate under khas management and pay me malikana, as provided in Sections 3 and 5, Regulation 7 of 1822.

It is, thus, quite impossible, to my mind, to, suggest that, during the settlement operations s which took place between 1890 and 1900, proprietors of land, throughout the length and; breadth of Orissa, spontaneously dedicated land, in practically every village in their estates, to the general public for use as burning grounds. On the contrary, all that they did was to give an undertaking to the Collector that they would permit such land as had, been reserved for use as burning grounds to continue to be used in this way. There was nothing in the undertaking, which they gave, to prevent them from asking the Collector to permit them to resile from it and to use any land, so reserved, for some other purposes. Nor, so far as I can see, was there any reason why, in a particular case, the Collector should not grant such permission, if a sufficient case was made out.

As I have already said, the proprietor of the Darpan estate or his manager consulted the Collector of Cuttack in this matter and obtained his sanction before leasing any portion of the land in suit to the defendants. It has been pointed out that the Darpan estate is not a temporarily settled estate, but a permanently settled estate. This circumstances cannot, however, be of assistance to the plaintiffs. On the contrary, it puts them if any thing, in a rather worse position; inasmuch as, at the conclusion of the settlement operations, the proprietor of the Darpan estate did not execute any kabuliyat, as, of course, he would have done if his estate had been a temporarily settled one. From para. 474 at page 318 of Maddox''s Final Survey and Settlement Report of the Province of Orissa, vol. I, it appears, that the settlement authorities were, at times, content to obtain the consent, not of the zamindar, but of his agent, to the reservation of land. We know from Babu Hara Krishna. Mahanti''s Final Report on the Settlement of. Killa Darpan that, in 1901, when the reeord-of-rights was finally published, the proprietor of the estate was the young widow of Babu Harihar Nath Pandit, who had died in the previous year. In such circumstances, one cannot feel at all confident that any undertaking was really given by the then proprietor of the estate at all. In any event, such undertaking, if it was given, was plainly a gratuitous undertaking, and it was open to the proprietor of the Darpan estate to resile from it, if circumstances arose creating a situation not at all in his contemplation when the undertaking was given. In 1901 the proprietor of the Darpan estate could not possibly have foreseen that, some 30 or 40 years later, this land was to become capable of being put to some commercial and very profitable use. In para. 89 of his report, Babu H. K. Mahanti said that "the proprietor took care to exclude culturable areas" from the reserved lands. In other words, if the proprietor had foreseen the use, that could later be made of this land, he would very probably not have agreed to its reservation. For these reasons, this appeal must, in my judgment, be allowed and the suit must be dismissed with costs throughout.