NARAHARI DEY Vs. CHANDU HERRAM

JUDGEMENT

(1.) 11 acres of land comprised in Plot No.1, Khatian No.1, Mouza Asti, P.S. Dantan, is the subject-matter of the present appeal. In the Cadestral Survey Records the said plot was included in the khas khatian of Radha Gobinda Pal, who was the then Zamindar of Mouza. The said Plot No.24 was described as "gochar" with the remarks "dakhal sadharan". Radha Gobind Pal died leaving a Will and the defendant Nos.2 to 4 of the present suit were his legal representatives and also landlords of the mouza. The defendants 2 to 4 by filing returns under Section 6 of the West Bengal Estates Acquisition Act, 1953 had purported to retain the said Plot No.24. In the finally published R.S. Records, the defendants 2 to 4 have been recorded as non-agricultural tenants. At the same time, the suit plot has been again recorded as a "gochar" with the remarks "Sadharaner byabaharyya". On 6th July, 1958 they executed a kobala in respect of the suit land in favour of the defendant No.1.

(2.) The present appellants as plaintiffs had instituted a suit in representative capacity on behalf of the residents of village Asti against the present respondents, inter alia, for a declaration of their customary right of pasturage in the said Plot No.24, recovery of possession and for permanent and mandatory injunction for removal of bands and for restoring the land as a pasturage. The plaintiffs obtained leave under Order 1 Rule 8 of the Code. The defendant No.1 and the defendants Nos.2 to 4 contested the said suit by filing separate written statements. They, inter alia, denied that the plaintiff villagers have acquired any right of pasturage over the suit land by custom.

(3.) Both the learned Munsif in the trial court and the learned Additional Subordinate Judge in appeal have found that the villagers of Asti from time immemorial had been using the suit land as a pasturage openly, uninterruptedly and to the knowledge of the landlords, who were the owners of the suit land. Their further finding is that the landlords, who were the owners of the suit land did not exercise any act of possession over the suit land nor did they ever attempt to bring the suit land under cultivation or in fact, exercise any of the rights of ownership. Both the C.S. and R.S. Records showed that the villagers of Asti used the suit land as a common pasturage. The suit land, according to the findings made by the two courts of fact was a low land and in the lower level than other surroundings lands. It became quite unfit for cultivation in the rainy seasons because of accumulation of water. The defendant No.1 for the first time brought the suit land under cultivation in 1365 B.S. After the suit land was brought under cultivation, it was no longer possible for the cattle of the villagers Asti mouza to graze therein through out the year. There was no other grazing ground in the village. The lower appellate court has recorded in its judgment that there was "plenty of evidence sufficient for a conclusion that the plaintiffs, the villagers of Asti village, had acquired a customary right of pasturage over the suit land, and there is nothing for the respondents to challenge such finding of the learned Munsif. But the trial court and the lower appellate court have dismissed the plaintiff's case on the ground that the customary right of pasturage claimed by the plaintiffs was not reasonable. According to the lower appellate court, the landlords had allowed the villagers to use the suit land as a pasturage so long because they had no immediate need for cultivation and they had been living far away from the suit land, they should not be prevented from exercising their right to the suit land as owners by cultivating the land and thereby being totally deprived of the enjoyment of the same.