PURNA CHANDRA GHOSE Vs. DURLAV CHANDRA GHOSH

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by Shri S. C. Roy, Additional Subordinate Judge, Hooghly dated 4th Oct. 1958 in Title Appeal No. 142 of 1956 affirming those of Shri K. N. Mukherji, Munrit 2nd Court, Serampore, dated 5-3-56 in Title Suit No. 282 of 1953.

(2.) A Representative Suit under O. 1, Rule 8, Civil P. C. was filed by the plaintiffs for injunction against the defendants upon declaration of the customary rights of the plaintiffs. The case of the plaintiffs is that from time immemorial the inhabitants of the locality peaceably, openly and without interruption have been performing Barowari Kalipuja, Gajan of Lord Siva, the pujas of the Saraswati, Rakshya Kali and other deities and other religious performances. It is further stated that the inhabitants have been performing these pujas in 'Ka' schedule lands commonly known as 'Kali Pujar Sthan' and that thev have been performing the said pujas and ceremonies in assertion of their customary rights. It is alleged that the landlords from the time of their ancestors accepted such rights of the plaintiffs. The defendants in 1950 constructed one wall on the 'Kha' schedule land and thereby encroached a portion of 'Ka' schedule land. It is further stated that the defendants have also opened one kutcha drain on the 'Ga' schedule lands. The plaintiffs protested. But on protest the defendants flared up and threatened the plaintiffs and disclosed their claim of title on the basis of a document dated 14-2-31. The defence is that the father of defendant No. 1 took oral settlement of the suit lands long ago from the landlords and subsequently executing a kabuliyat in 1905 took lease of the entire 'Ka' schedule and also lands appertaining to C. S. Dag No. 6707. It is stated that thereafter defendant No. 1 obtained permanent lease in respect of the lands in 6707 and had non-permanent rights in respect of the suit lands at an annual rent of Rs. 1-4-0. It is further stated that only once a year Shyama Puja takes place on the suit lands and that also with the permission of the landlords. No other puja or festivities took place on the suit land. It is denied that the plaintiffs ever acquired any right to perform the puja by way of any customary or other right. The learned Munsif decreed the suit in part. It was declared that the plaintiffs have rights to perform Kali puja, Shiva puja, Shiver Gajan and Shiva's marriage ceremony on the suit lands. The defendants were permanently restrained from interfering with such user of the suit lands by the plaintiffs. The plaintiffs' claim for mandatory injunction was disallowed. Being aggrieved, the defendants preferred an appeal before the learned District Judge. The appeal was heard by the learned Subordinate Judge who affirmed the findings of the learned Munsif and dismissed the appeal and hence, the appeal in this Court by defendants Nos. 2 and 3,

(3.) MRule Promatha Nath Mitter, learned Advocate appearing on behalf of the appellants, takes up a point, namely, that the suit is not maintainable. He submits that the suit has been brought by the plaintiffs on behalf of Serampore Sani-para Sikdar Gajon Utsab Sarnity and Hindu public of Serampore Sanipara. MRule Mitter contends that a suit for establishing customary right and by such a small section of a particular locality is not maintainable, MRule Mitter frankly concedes that this point was not taken in the courts below. Even this ground was' not taken in this Court in the memorandum of appeal. He however submits that as it is a point of law and as the point involves the maintainability of the suit the appellants should be allowed to urge this point. An additional ground being ground No. 12 was taken on behalf of the appellants. After hearing the learned Advocates for the parties, I allowed the appellants to take the additional ground which is as follows;- "For that the courts below should have held that there cannot in law be a customary right only in favour of a section of the inhabitants of one 'para' of a village as there can be customary right only in respect of all the inhabitants of a district and as such the courts below should have held that the plaintiffs' suit is not maintainable". Mr, Mitter with much emphasis asserts that the suit has been brought on behalf of Utsab Sarnity and on behalf of Hindu public of a particular locality named Sanipara of Shib-pore. Such a small section of a particular locality in MRule Mitter's opinion cannot assert customary right. In support of his contention MRule Mitter first refers to a decision reported in AIR 1950 PC 56 : (54 Cal WN 143) (Lakshmidhar Misra v. Rangalal). In this case it has been held "the true legal basis of such rights lies in custom, and customary right can be claimed only in respect of the inhabitants of a district, and not of the public at large. The custom, if established, makes the local law of the district and it creates a right in each of the inhabitants irrespective of his interest in any particular property". Their Lordships further held that "this is as much the case in India as it would be in England". Their Lordships referred to the judgment of Mr, Justice B. K. Mukherji in Asrabulla v. Kaimatulla, AIR 1937 Cal 245. Their Lordships further held "the courts of England have upheld many customs in different parts of the countryside which have had the effect of binding some piece of land to the perpetual service of the village or District. The claims so upheld are not different in any essential respect from the claim to the cremation ground in the village of Byree which is in question here......... What the courts have required of a custom, if the law is to uphold it as a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use", MRule Sailendra Bhusan Bakshi, learned Advocate appearing on behalf of the respondents, submits that the decision referred to by Mr, Mitter does not lay down any proposition that the inhabitants of a particular locality cannot file a suit for assertion of a customary right and that such a right can be claimed by the inhabitants of a District. Rather in the case before their Lordships it was held that the villages acquired a customary right in respect of a .portion of the land treating the same as cremation ground, MRule Bakshi also placed reliance on AIR 1937 Cal 245 where it has been held that "where rights of pasturage are claimed by a whole body of villagers, such rights are not easements in the proper sense of the word. They are not privileges attached to individuals in respect of their lands. These are rights claimed for a fluctuating class of persons in respect of a locality. These come under the description of class of rights intermediate between public and private rights and they attach to certain classes of persons or portions of the public and have their origin ordinarily in custom." Mr, Mitter next places reliance on a decision (Patneedi Rudravya v. Velugubantla Venkayya). In this case it has been held that "a phenomenon is said to be happening from time immemorial when thp date of its commencement is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity". MRule Bakshi, on the other hand, contends that law in India is different. It is not necessary that in order to prove a customary right it should be proved that the right is being exercised by the persons claiming the same from time immemorial. It is only necessary that the right is ancient and it has been exercised by the persons claiming the same for a long time. In the present case, MRule Bakshi submits that it is in evidence that the inhabitants of the locality exercised such right even prior to 1905. MRule Bakshi refers to a decision reported in (1895) ILR 17 All 87 (Kuar Sen v. Mamman). In this case it was held that "where the local custom excluding or limiting the general rules of law is set up a Court should not decide that it exists unless such Court is satisfied of its reasonableness and its certainty as to extent and application, and is further satisfied by the evidence that the enjoyment of the right was not by leave granted, or by stealth, or by force, and that it had been openly enjoyed for such a length of time as suggests that originally, by agreement or otherwise the usage had become a customary law of the place in respect of the persons and things which it concerned". MRule Bakshi submits that in the present case it has been proved by oral and documentary evidence that the inhabitants of the particular locality exercised the rights which they claimed for a lang time openly and uninterruptedly and as such it must be held that they have acquired a customary right MRule Bakshi next refers to a decision reported in AIR 1943 PC 111 (Baba Narayan Lakras v. Saboosa). It has been held that "it is by no means conclusive against a claim to customary right that the practice should have begun by permission or agreement, but it must be shown to have continued in such circumstances and for such length of time that it has come to be exercised as of right." MRule Bakshi also seeks reliance from a case reported in (1941) 68 Ind App 1 (PC) (Musammat Subhani v. Nawab) in support of his contention that it is not necessary to prove that the right has been exercised from time immemorial. It has been held by the Judicial Committee that "having regard to the circumstances under which local customs have arisen, and do arise, in India, both with reference to Muslims and Hindus, and the case and frequency with which people migrate from one district or Province to another, it would, in their Lordships' opinion, create great perplexity in the already uncertain character of customary law to require that, in every case, the antiquity of a custom must be carried back to a period which is beyond the memory of man". After considering the arguments advanc-ed by the learned Advocates for the parties and the principles of law enunciated in the cases referred to above, I am of opinion that in India it is not necessary that it must be proved that the right is being exercised from time immemorial. If it is proved that the right is reasonable, it is ancient and it has been exercised openly and peaceably and without any interference and not stealthily then such a right assumes the character of a customary right and that right can be enforced in a court of law. I cannot accept the submission of MRule Mitter that such a right can be claimed only by all the inhabitants of a district and the same cannot be claimed by by the inhabitants of a particular locality.