SUPERINTENDING ENGINEER 2ND CIRCLE Vs. CHITTURI RAMAKRISHNAYYA

JUDGEMENT

(1.) The defendant, who is described in the plaint as a Government Officer, (namely, the Superintending Engineer, 2nd circle, D. P. W., residing at Bezawada) is the appellant before us.

(2.) This suit for injunction (among other reliefs) was brought against him because (according to the plaint) the defendant in his official capacity attempted to remove a dilapidated Ganapathi Image, which had been placed on a site which has been found by the lower Appellate Court to belong to the Government. The image itself also has been found by that Court to belong to the Government. The Court, however, found (see paragraph 13 of its judgment), (1) that some sort of worship was being done to the said idol for a long time, even when the idol lay half buried in the ground, it having been raised up and placed on a platform only in 1915: (2) that to establish a customary right, it was not necessary that there should be enjoyment for over 20 years or the like. The lower Court further said, "even supposing that the enjoyment claimed does not go so far back as to 1872 or 1873, still, I am of opinion, on the evidence on record, that there was sufficient enjoyment for the acquisition of the customary right by the plaintiffs" that is the right to worship the idol at the place where it now stands. On these grounds the lower Appellate Court confirmed the permanent injunction granted by the District; Munsif. Several grounds have been taken in the memorandum of second appeal; but I shall deal with only three of them, namely, grounds Nos. 7, 10 and 11. 7. The Courts below ought to have held that the suit is barred for want of notice under Section 80 of the Civil Procedure Code, The cases relied on by the lower Appellate Court do not apply and are not correctly decided. 10. The lower Appellate Court erred in finding that the so called customary right of the plaintiffs is made out. 11. There cannot be such a custom as is set up by the plaintiff. There is no legal evidence in support of the custom set up. The finding of the lower Appellate Court in paragraph 13 of its judgment is unintelligible.

(3.) I shall deal, shortly, with grounds NOS. 10 and 11. I shall not go into the question whether a customary right in the Hindu public to worship an idol belonging to a third person, and placed on a site belonging to that third person, can he legally acquired or proved, as my mind is not quite made up on that point. Assuming that such a customary right can he proved by the fact that the owner of the site and of the idol had allowed such worship to be carried on for a sufficiently long time by the Hindu public, I am clear that the proof required by the Courts, especially where the owner of the site and the idol is not a Hindu must be very clear and strong. (The Government being neutral in religion is of course not Hindu in religion.) The length of time must be considerable and the acts of worship must be very open and such as clearly indicate to the owner that the worshippers have claimed the right to carry on the worship openly and as a customary right. Paragraph 13 of the lower Court s judgment is vague and indefinite, It does not set out the particular acts of worship, or the length of the enjoyment of the alleged right or whether the acts were such as to give notion to the Government that the worship was carried on, an of right. The Distrait Munsif finds (see page 13, line 40 of the printed papers) that it was in July 1915 that the platform for the idol was erected, evidently by the D. P. W. itself, and that the image which had been lying half buried was raised up and pleased on the platform. The site of the idol had, therefore, been changed at least vertically. P.W. No. 2 himself save in September 1917; During the last 2 or 3 years worship is being carried on, on a "grand scale. Before that, according to Exhibit I, cocoanuts used to be broken before the half buried Ganesa, by passing worshippers such worship is even done to peepul and margosa trees standing on District Board roads and Municipal roads by some devout Hindus and it would be dangerous to hold that the Municipally or the District Board is not entitled to out them down, if such setting is required to widen the roads or for any other lawful purpose. I shall, however, not express any final opinion on this matter and, even if it is necessary to come to a conclusion on this point, I should hesitate to accept the vague finding of the lower Appellate Court, on the necessary fasts to be proved and would call for a more detailed and definite finding, as to the times, planes, nature, extents and qualities of the acts of worship. As to the length of the enjoyment required for the acquisition of a customary right (also loosely called "customary easement"), I remarked recently that though no period is mentioned in the Limitation Act for the acquisition by the public of a customary right by long enjoyment Courts will be well-advised if they require at least 20 years uninterrupted and acquiesced enjoyment to establish such a customary right in the public, the owner having knowledge of such an enjoyment (See Second Appeal No. 722 of 1919).