PRABHU DAYAL Vs. LEELA DHAR

JUDGEMENT

(1.) THIS is an appeal by the defendants. The plaintiffs filed a suit alleging that they and the defendants were descended from a common ancestor Hari Shah. It was asserted that there were about 500 descendants of Hari Shah in Qasba Sikandarabad while some other descendants reside outside. It was alleg ed that the defendants were the owners of the disputed courtyard which was situated inside, and that from time im memorial, the descendants of Hari Shah had been doing Pooia on the occasion of Holi. and also burning Holi and perform ing other rites connected thereto in that court-yard, as of right and without any interruption. The plaintiffs' grievance is that defendants Nos. 1 and 2 had pre vented them from performing the afore said acts on the occasion of Holi. which has caused immense mental suffering to the plaintiffs and hence the suit for in junction restraining the defendants from preventing the descendants of Hari Shah from performing Pooja and other rites connected with Holi.

(2.) THE defendants took up the stand that the descendants of Hari Shah never utilised the court-yard for the per formance of various rites on the occasion of Holi. and further that the dimension ocf the court yard was very small and was insufficient to accommodate 700 or 800 persons who were descended from Hari Shah. In paragraph 7 of the written statement, it was asserted that even if there was any such custom as pleaded by the plaintiffs, it was opposed to law. un reasonable and not enforceable.

(3.) THE defendants thereafter filed an appeal. At this stage, it was conceded by the counsel for the defendants that the right of burning Holi and of performing various ceremonies connected therewith 'j had been peacefully enjoyed ever since j the inception without any obstruction. The finding of the trial court that the exercise of such a right was unreasonable was, ' however, contested. The lower appellate court accepted the finding of the trial court and took the view that inasmuch as the entire body of the descendants of Hari Shah did not insist on entering the court yard all at a time the mere fact that the dimensions of the court-yard were small did not render the custom set up unrea sonable. Followin? two decisions of this Court in Lakhmi Chand v. Moti Lal. AIR 1939 All 165 and Kanhai Singh v. Basdeo Sahai. AIR 193y All 387 the lower appel late court held that the right of burning Holi was a customary right of easement and could be acauired and took the view that the present controversy was covered by these two decisions. It distinguished a decision of the Rajasthan High Court in Ram Chandra Singh v. Partap Singh. AIR 1965 Raj 217 where it was held that the right to rest cattle at a particular spot outside the abadi was unreasonable in view of the fact that there has been con siderable increase in the Abadi and the plot noXw fell right in the heart of the Abadi. as it took the view that the Raias-than case did not relate to a customary right of easement In view of these find ings the lower appellate court held that the plaintiffs had acquired a customary right of easement of performing the various rites connected with Holi. And further that the exercise of such right could not be said to be unreasonable.