BABA NARAYAN LAKRAS Vs. SABOOSA

JUDGEMENT

(1.) THIS appeal is preferred by the plaintiffs in a suit brought on behalf of the Hindus of a place called Basim, situated in Berar, against a number of Muslim defendants as representing the whole Muhammadan community of Basim. An order under Rule 8 of Order I of the Civil Procedure Code, 1908, was duly made and the defendants contested the suit in. three Courts in India. Their Lordships much regret, however, that they have not had the advantage of any argument for the defendants as no one appeared to represent them at the hearing before the Board.

(2.) THE dispute is as to the right of the Muslims at the time of Muharram to immerse tazias in a tank called the Padmatirtha tank which lies to the North-West of Basim. This tank is described as a large area of water and as having ten ghats. THE relief claimed by the plaint, which was filed in the Court of the Subordinate Judge at Basim on June 20, 1929, was an injunction restraining the defendants from immersing tazias (a) from ghats Nos. 1 and 2 ;. (b) from ghats Nos. 3-7 and 10 ; (c) from ghats Nos. 8 and9. THE plaint alleged that the tank was the property of the Hindus : it admitted that for about ten years-that is since about 1919-tazias had been immersed from ghats Nos. 1 and 2, but stated that this use was by permission of the Hindus. It complained that in 1925 damage had been done to certain trees sacred to the Hindus and that since 1925 all the ghats had been used, except ghats Nos. 8 and 9, in 1926. It alleged, quite truly, that what was done in 1927 and 1928 was covered by orders made by the District Magistrate to avoid a breach of the peace. THE written statement denied that the ownership of the tank was in the Hindus, claimed that it belonged to an ancestor of the first defendant, and set up an alternative case that the Mussulmans had from time immemorial and as of right immersed tazias from all the ghats. THE allegation of damage done to trees was met by a plea-both ill-advised and groundless-that the Mussulmans have unobstructed right of immersing tazias in the tank. If branches of any tree come in the way, they are always cut, in order to allow a free passage, without any objection.

(3.) ON the view that user before 1910 had not been proved and that after 1924 it was not peaceful, he considered that no customary rights to immerse tazias from ghats Nos. 1 and 2 had been established, the user proved being insufficient in point of antiquity. He further held that from 1910 to 1919 the custom was not uniform as all the tazias did not come to Padmatirtha : " only some came and it is not proved that the same came in all the years." He found that the use of ghats Nos. 1 and 2 had been permissive.