Sudhir Chandra Ghosh vs Balai Santra

Chatterjee, J.—This is a second appeal from the judgment and decree of the Court of appeal below affirming those of the trial Court dismissing the suit. This is a suit by the villagers for a declaration of a customary right of pasturage over the suit property and for an injunction upon the Defendants restraining them from converting the same into arable land and also for restraining them from interfering with the right of pasturage of the Plaintiffs, the villagers.

According to the plaint, the villagers are all cultivators who have catties and other domestic animals and from time immemorial they have been exercising such customary right without any objection at any time. The defence is that such customary right is not recognised in law and does not exist in fact and further, even if there was such a right, it was an incumbrance and therefore, such right was lost after the acquisition by the State of all estates of the intermediaries free from incumbrance under the provisions of the Estates Acquisition Act.

The trial Court considered the point whether the suit was maintainable or not and dismissed the suit on the ground of non-maintainability. There was an appeal to the Court of appeal below and the Court of appeal below dismissed the appeal and upheld the judgment of the learned Munsiff. Two questions have been urged before me. The first is whether law recognises a customary right as alleged in the plaint and the second is even if law recognises such a right, whether such a right would be an incumbrance within the meaning of the Estate Acquisition Act and therefore, lost under the provisions of the Estates Acquisition Act.

Mr. Chakravarti urges that the right, as alleged in the plaint, is either common of pasturage as known in England or is an easement as it is known under the Indian Easement Act. It is undoubtedly true that English Law recognises common of pasturage and further recognises that such right may also be in gross. According to Mr. Chakravarti, neither a right of common of pasturage nor an easement can be claimed by a fluctuating body of persons, the villagers. Hence, the suit is not maintainable according to Mr. Chakravarti. But the Plaintiffs here claimed to have acquired a right by custom. The villagers have undoubtedly further made out a case that such custom arose from a grant. Such grant in favour of a fluctuating body of persons cannot be effective in law. It may, however, be that the landlords suffered without protest such customary right for a long time.

The question whether such a custom is recognised in law in India was considered by Justice Sarada Charan Mitra in his Tagore Law Lectures, 1895, on the Land Law of Bengal. He observed (p. 495, 2nd ed.) as follows:

''Pasturage'' is, in the large majority of cases in this country, public, in the sense that they belong to or are capable of being used by a community or classes of individuals in a village. Such rights are necessary for the preservation of society.

According to the author:

In the Permanent Settlement of 1793 these public or customary rights were not sufficiently protected, though their existence must be traced to a very early stage of civilisation. ''Customary'' rights belong to no individual in particular, but may be enjoyed by any person who for the time being inhabits the locality to which these rights are appurtenant, or who belongs to the particular class entitled to their benefit. Any resident of the locality may assert the right in a Court of law.

He further observed:

To an agricultural population, pasture-land is of the utmost importance and there is seldom a village in Bengal which has not a large piece of land attached to it for the grazing of cattle belonging to its inhabitants.

He then refers to verse 237, chap. VIII, in Manu and also refers to Yajnavalkya. Hence, such customary right has been recognised in India from very early times.

The matter came up in the Bombay High Court in 1889 in a case between Secretary of States for India v. Mathurabhai (1885) 14 Bom. 213. It was held:

Under the English law ''a profit a prendre cannot be acquired by the inhabitants of a village either by custom or prescription''. But that does not apply to a right of pasturage claimed by villagers in the Presidency of Bombay as against the Government. ''The right to free pasturage has always been recognised by Government as a right belonging to certain villages and must have been acquired by custom.''

Custom has always been recognised to be a source of law in every system of jurisprudence. Salmond observed:

Immemorial custom in a particular locality has the force of law.

But whether there is a custom or not, is a different matter; but once it is established that there is custom in a locality, it becomes law for that locality. Before such a custom be established, four elements have to be proved. They are (i) of immemorial existence, (ii) certain, (iii) continuous and (iv) reasonable. Justice Sarada Charan Mitra, in his Tagore Law Lectures aforesaid, was of opinion that such customary right would be proved if it is reasonable and certain. He assumed the existence of the custom from time immemorial and also its continuity and therefore, the other two matters that would still require to be proved were that it was reasonable and it was certain. Parties may in this case adduce evidence to show that the land in suit or any part of it has been continuously and from time immemorial being used for that purpose. Apart from that they have to prove that such a custom is reasonable and it is also certain. If such custom is proved, the law would recognise it no useful purpose would be served by saying that it is not the law in England. A customary right of pasturage may not be the law in England. It is a local law in India.

I would now just refer to the decision of the Judicial Committee on that point in 8 CWN 425 (Privy Council) . Lord Machnaghten observed as follows (p. 81):

It appears to their Lordships that on proof of the fact of enjoyment from time immemorial, there could be no difficulty in the way of the Court finding a legal origin for the right claimed. Unfortunately, however, both in the Munsiff''s Court and in the Court of the Subordinate Judge, the question was overlaid and in some measure obscured by copious references to English authorities and by the application of principles or doctrines, more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions.

Their Lordships then observed as follows (p. 82):

The learned Judges, in their Lordships'' opinion, were justified in rejecting the notion, which seems to have been advanced in argument and was adopted by both the lower Courts, that the right claimed was a right in gross.

Hence, it is quite clear that the Judicial Committee recognised a customary right of pasturage in India apart from English law. It was recognised because such right was claimed to have been ''enjoyed by the Plaintiffs and their predecessors from time immemorial from the time of the Hindu Rajas long before the Watsons had anything to do with the property''. Their Lordships held that once that fact in enjoyment was proved, there was no difficulty in ''finding a legal origin for the right claimed. Hence, I must answer the first point in the affirmative that such a customary right is recognised in India and it is neither an easement nor common of pasturage but a right acquired by custom by the villagers from being enjoyed in that manner from time immemorial and that such custom is local law.

It is next urged by Mr. Chakravarti that even if the Plaintiffs have a customary right as alleged after the vesting of the estate that customary right ceased to exist because it was an incumbrance. The land in question was the property of the zamindars, painidars and other tenure-holders; hence the land in question was the property of intermediaries. Their estates have vested and the State of West Bengal has got the land free from incumbrance. It is urged that the State of West Bengal has got the land free from the customary right of pasturage. It is urged if the zamindar or the patniddr had mortgaged the land, the State of West Bengal would get the same free from such mortgage. Similarly, the State of West Bengal will get it free from the liability of a customary right of pasturage.

The definition of the word ''incumbrance'' in Section 2(h) of the Estates Acquisition Act is as follows:

''Incumbrance'' in relation to estates and rights of intermediaries thereto does not include the rights of a raiyat or of an under-raiyat or of a non-agricultural tenant, but shall, except in the case of land be allowed to be retained by an intermediary under the provisions of Section 6, include all rights or interests of whatever nature, belonging to intermediaries or other persons, which relate to lands comprised in estates or to the produce thereof;

The first part of it states that a raiyat or an under-raiyat or a non-agricultural tenant though lessees under the intermediaries and though carved out of the estate of an intermediary, encumbering that estate, there would still not be incumbrance as defined. In other words, the raiyats, xmdev-raiyats and non-agricultural tenants are protected even though these lessees encumbered the estate of intermediaries. The second part is that if land be retained by the intermediary, interests created by the intermediaries and belonging to third persons with respect to that land may not be deemed to be_ incumbrances. The third part is important for our purpose because Mr. Chakravarti relies on that part only. It reads as follows: Incumbrance includes

all rights or interests of whatever nature, belonging to intermediaries or other persons, which relate to lands comprised in estates or to the produce thereof.

Mr. Chakravarti for the State urges: Customary right is a right of some nature belonging to other persons (the villagers) which relate to the land comprised in the estate. I must agree, (a) a customary right is a right of some nature, (b) this right is enjoyed by the villagers and (c) such customary right relates to the land comprised in the estate or to the produce thereof. Mr. Chakravarti then says ''quod erat demonstrandum''. The Courts below agreed.

But the question is whether customary right enjoyed by the villagers is a right ''belonging to other persons'' relating to the land comprised in the estate or to the produce thereof. This leads to the consideration of two matters (a) whether the villagers are other persons within the meaning of Section 2(h) of the Estates Acquisition Act and (b) whether such customary right ''belongs'' to the villagers or to any individual in the village.

The phrase ''other persons'' undoubtedly means other persons than the intermediaries. Does the word ''persons'' include villagers? Under the Bengal General Clauses Act:

Unless there is anything repugnant in the subject or context the word ''person'' with reference to all statutes after the commencement of Act 1 of 1899 shall include any company or association or body of individuals, whether incorporated or not.

In Raja Braja Sundar Deb Vs. Moni Behara and Others, Mahajan, J. observed:

It is not possible to hold that fishermen residing in these villages are a corporate body...we find ourselves unable to subscribe to the view...that the Defendants (fishermen of a village) constitute some kind of unit....

Hence, the villagers do not form a legal unit and are not other ''persons'' within the meaning of law. Hence, the villagers are not other ''persons'' within the meaning of Section 2(h), because there is nothing else in the context which would show that such villagers were intended to be included within the meaning of the said section and beyond the meaning of the same word as in the Bengal General Clauses Act.

Sarada Charan Mitra, in the aforesaid Tagore Law Lectures, as noticed already, observed that such customary right ''belonged'' to no individual but might be enjoyed by any resident of the village. The villagers being a fluctuating body of persons cannot own any right. Hence, such a right cannot belong to villagers. It belongs also to no individual in the village. He cannot transfer this right to another man in another village because it is a local law with reference to a particular village and is no law with reference to another village. Hence, it cannot be said that customary right is a right belonging to the villagers or to any individual resident of a village though it is a right which relates to the land comprised in the estate and to the produce thereof.

This is about the definition. Let us examine the relevant provisions of the statute concerned which relates to the definition aforesaid. Section 4 of the Estates Acquisition Act provides that all estates and interests of intermediaries vest in the State free from all incumbrances from the date of a notification. Section 5 illustrates the effect of notification it says what incumbrances are freed and what not.

The first part of the definition in Section 2(h) is illustrated by Section 5(c) and (d). They say that non-agricultural tenants, raiyats and under-raiyats, till chap. VI comes into operation, are protected even though these are lessees and incumbrances, such lessees would pay certain rent. Section 5(a)(i) and (ii) illustrate what rights, interests belonging to intermediaries do vest. Section 5(a)(i) provides that rights in sub-soil belonging to intermediaries will vest. Section 5(a)(ii) refers to all sairati (revenue) interests of intermediaries and provides that; they, will vest. Section 5(aa) refers to rights with respect to lands, trees in forests and provides that they will vest not merely the rights and interests of the intermediaries will vest but the rights and interests of other persons will also vest. This provision illustrates the third part of the definition. I may state that two amendments, namely, Section 5(aa) and the third part of the definition in Section 2(h) were introduced simultaneously. Section 5(b) says, grants in favour of intermediaries will vest.

Section 6 refers to various classes of persons who may retain. Section 6(h) refers to a local authority. Section 6(i) refers to corporation, institutions, trusts or to endowments. Section 6(j) refers to a co-operative society. There is no reference to rights of the villagers in the whole Act, not to any right of any fluctuating body of persons. The reasons for such omission may be that such rights were not considered in the Permanent Settlement Regulation nor in any of the subsequent statute relating to revenue. Another reason may be that the rights of the villagers are public rights and it is against public policy to destroy such public rights and they are so few in number.

Hence, on a consideration of the relevant sections and the definition ''right and interest of other persons which relate to land'' does not refer to rights and interests of all and sundry which relate to land. The rights and interests of non-agricultural tenants are rights and interests of other persons (other than intermediaries) which relate to the land but still do not vest, because it is protected from such vesting u/s 5(c) of the Act. Similarly, rights and interests of raiyats and under-raiyats, before chap. VI came into operation, were rights and interests of other persons which relate to lands comprised in the estate but still protected from vesting u/s 5(c) of the Act. Rights and interests of lessees of fishery granted by an intermediary, rights and interests of lessees in the tea gardens, orchard, mills, factories and workshops, held under the intermediaries, were rights and interests of other persons which relate to lands comprised in the estate or to the produce thereof; they would vest if the phrase ''other persons'' include all and sundry. But they are protected from vesting u/s 6(2), proviso. Hence, in the context of the statute the phrase ''other persons'' does not mean all and sundry. We also get from the statute who these ''other persons'' are Section 5(aa) refers to rights of other persons and says, the land in an estate comprised in a forest together with all rights to trees therein or to the produce thereof, held by any other persons,, shall vest. Again exception to Section 6(1) provides that no other person shall be entitled to retain land comprised in any embankment as defined in Bengal Embankment Act. They will vest. Section 6(4) provides that the said other persons who have land comprised in a forest would be deemed to be intermediaries and would be paid compensation for the same. Even if the villagers customary rights vest in the State there is no provision for any compensation, whether there might have been or not, is another matter, but there is none. Mr. Mitter urges if it did vest, there being no compensation for such vesting, such provision for vesting would be void under the Constitution.

The definition of the word ''incumbrance'' u/s 2(h) of Hkate Acquisition Act is not exhaustive. It includes certain things and excludes others. To get an idea of what an incumbrance is we have to refer to the Bengal Tenancy Act in terms of Section 2(p) of j) the Estates Acquisition Act. u/s 161 of the Bengal Tenancy Act ''incumbrance'' means

any Hen, sub-tenancy, easement or other right or interests created by the tenant on his tenure in limitation of his own interest.

With reference to the Estates Acquisition Act we shall read the word ''intermediary'' for the word ''tenant''. Section 2(p) really refers to the expression used in the Act but not otherwise defined. Here a definition has been given, but it is not exhaustive. Therefore, we have to see what is the meaning of that word and then modify that meaning with reference to what has been provided in Section 2(h). Section 2(h) really includes certain things as incumbrance which would not have been incumbrance within the meaning of Section 161 and excludes certain things from the definition of the word ''incumbrance'' which would otherwise be included within Section 161 of the Bengal Tenancy Act. Hence, the definition of the word ''incumbrance'' from Section 2(h) and Section 2(p) of the Estates Acquisition Act is the definition of that word in Section 161 as modified by the exclusion and inclusion as made in Section 2(h). We have found that modifications, which have been made in Section 2(h), do not include customary right as an incumbrance. We have to examine now whether it is an incumbrance within the meaning of Section 161 of the Bengal Tenancy Act. The answer would be, it is not; because it has not any lien, sub-tenancy, easement or other right or interest created by an intermediary on his estate in limitation of his own interest. It is a burden which is imposed upon him. Hence, a customary right is not an incumbrance upon the estate of the intermediary within the meaning of Section 161 of the Bengal Tenancy Act as read with Section 2(h) of the Estates Acquisition Act.

Custom is local law. The Estates Acquisition Act is the general law for the State. Custom may be extinguished by statute. There is no specific provision that such customary right will he extinguished by the statute. Ordinarily, generalis specialibus nonderogent, where general words in a latter Act are capable of reasonable and (sic) application without extending them to subjects specially, with by earlier legislations that earlier special legislation is (sic) held indirectly repealed, altered or derogated from merely (sic) such general words without an indication of a particular (sic) to do so. (Maxwell, 9th ed., chap. VIII, Section 3, p. 183). (sic) same principle, earlier customary rights by local law (sic) altered or derogated from by force of the general words regarding incumbrance used in the latter statute (Estates Acquisition Act). The question is whether the statute is repugnant of the custom (Halsbury''s Laws of England, 3rd ed., vol. II, pp. 180-81). The Estates Acquisition Act deals with various rights which would be extinguished and also deals with various other rights which are to be protected and enforced against the State of West Bengal. I am not inclined to say that public right which is essential for the existence of a village life was intended to be destroyed by implication. Such custom is in no way repugnant to the provisions of Estates Acquisition Act which extinguish certain right on payment of compensation. No right was intended to be extinguished for which no compensation was paid. Further, no compensation could have been paid to a fluctuating body of persons like the villagers and hence no provision has been made for compensation to them and secondly, no indication has been given that such customary right would not be protected. Finally, the Estates Acquisition Act has a real reference to Bengal Tenancy Act and other Revenue Statutes in the State. It is indeed true as Sarada Charan Mitra observed that no provision was made in the Permanent Settlement Regulation or in any latter law like Revenue Sale Law or Patni Regulation which made any expressed provision for protection of such customary right on the sale of an estate or a patni. So Section 183 of the Bengal Tenancy Act was introduced which provided that nothing in that Act would affect any custom usage or customary right not inconsistent with or not expressly or by necessary implication modified or abolished by its provision. The Rent Commission Report, vol. I, para. 12, p. 9, stated as follows:

We have provided that nothing in the bill shall affect any custom or customary right riot inconsistent with, or not expressly or by necessary implication modified or abolished by, its provisions...unfortunately, notwithstanding a dictum of Sir Barnes Peacock to the contrary...an idea got to prevail that Act X had superseded all customs and was intended to do away with all agricultural rights, except those specially mentioned and provided for in that Act. We believe that there are many local customs in this as well as in every other country, well understood by the person, recognised by the landlords and susceptible of proof in the Courts of justice and we think it very desirable to make it clearly understood that the bill is not intended to interfere with any of these, unless they have been expressly rescinded by, or are clearly inconsistent with its provisions.

The decision of Sir Barnes Peacock referred to is Thakooranee Dossee v. Bisheshur Mookerjee (sic). The existence of a customary rate of rent recognised by the Full Bench.

(sic) Hence, my conclusions are:

(a) A customary right of pasturage is a public right because (sic). Such right is enjoyed by a fluctuating body of persons in a locality. Such fluctuating body of persons may have no right of easement and no profit a pandre. Such right may in the absence of a custom be void, but as local law based on custom it is an exception to the ordinary law of the land.

(b) Such customary right restricts the estate of an intermediary to some extent, but it is not an incumbrance upon his estate because it is not a lien, sub-tenancy, easement or other right or interest created by the intermediaries.

(c) Such customary right of the villagers encumbered or restricted the enjoyment of the estate of an intermediary to some extent and such right was enjoyed by the villagers. But it is no incumbrance as it is no right or interest belonging to ''other persons''; such customary rights are public rights and not private rights belonging to individuals; other persons in Section 2(h) refers to other individual, other corporation, other institutions represented by individuals, other trusts or endowments or other co-operative societies or other local authorities than the intermediaries, but does not in the context of the statute refer to the public belonging to a locality; supposing customary right was a right belonging to other persons with respect to the produce of the land comprised of in the estate, the vesting of such right may be questioned as no compensation for such vesting has been provided for and such interpretation may lead to the invalidity of the provision, if any.

Hence, my conclusion is that a customary right of pasturage is recognised in law in India and is not an incumbrance within the meaning of the Estates Acquisition Act. Therefore, the Plaintiffs may have a cause of action for the suit. The Court will now decide whether there was a custom in fact or not, namely, the Court will consider whether the alleged custom has been existing from time immemorial, has been continuous and is certain and further whether it is reasonable. The Court will further consider other matters on merit which may be urged by the parties concerned and decide the suit in accordance with law and in accordance with the observations aforesaid.

The appeal is allowed, with costs, the matter is sent back to the trial Court for decision on merit. Costs will abide by the result.

No order need be passed in the connected Rule which is disposed of.

Leave under Clause 15 of the Letters Patent is asked for. It is undoubtedly true that the appeal involves very important points of law. But I have merely sent the matter back on remand to see whether, in fact, there has been such a custom and it has not yet been decided.

Therefore, I am not inclined to grant leave under Clause 15 of the Letters Patent at the present stage.