LAWS(PVC)-1934-1-169

GOVINDA KALAR Vs. GANGARAM SINGH

Decided On January 29, 1934
Govinda Kalar Appellant
V/S
Gangaram Singh Respondents

JUDGEMENT

(1.) THE appellant is the malguzar of mouza Palandur in the Sakoli tahsil of the Bhandara District. He brought a suit with regard to six plots of land in the village of the aggregate area 48.90 acres, for a declaration that he was entitled to cultivate that land or to use it for any legitimate purpose. He obtained a decree in the trial Court, but on appeal the District Judge set aside the decree and dismissed the suit. A second appeal was preferred against that decree to this Court, and Kinkhede, A.J.C., remanded the case to enable the defendant respondents to show that they had a user or customary right of grazing their cattle on the land. After the remand the Sub-Judge, Second Class, passed a decree dismissing the suit, holding that the defendants had a right of free grazing. An appeal by the plaintiff against that decree has been dismissed by the Additional District Judge, and the plaintiff has now preferred this second appeal.

(2.) IT may be stated at once that the view taken by the lower appellate Court is correct. It has been proved by the oral evidence on record, which has been considered by the Additional District Judge, that the respondents have a right of grazing their cattle free in the village waste. That right of pasturage has been mentioned in the wazib-ul-arz, Exs. D-13 and 2 D-1. Such customary rights of grazing are recognized in India, and in this connexion I would only refer to Secy. of State v. Mathurabhai (1890) 14 Bom 213 and Bhola Nath Nundi v. Midnapore Zemindary Co. (1904) 81 Cal 503. It may also be noted that the appellant has admitted that the respondents have a right of free grazing in the village. The appellant's contention however seems to be that the respondents have no right to graze their cattle in any particular land, but have only a general right of grazing on the village waste; that the land which he wishes to cultivate is especially suitable for cultivation, being under the village tank and that apart from this land, there is sufficient waste land in the village for grazing purposes. The contention that the tenants have no right to graze on any particular land is correct, and the malguzar can, in spite of a right of the tenants to graze their cattle on the village waste, cultivate part of that waste. He must however leave sufficient land for grazing purposes. This has been clearly held in Ram Saran v. Birju Singh (1897) 19 All 172.