SUDHIR CHANDRA GHOSH Vs. BALAI SANTRA

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.