HARI GANU Vs. SAKHARAM BALAJI

JUDGEMENT

(1.) In this case the plaintiffs framed their claim as if they were the owners of the land in question and assert-ed that they had been in the habit of burning their dead in this particular land and that the defendants had obstructed them in so doing. The case at the trial showed an entirely different state of facts. It was proved that the defendants were owners of the land and that the plaintiffs had been granted license to burn dead bodies and that for that purpose they came there from another place in 1866. Exhibit 87, which has been handed to us, shows that the Government deprived the plaintiffs of the right of burning dead bodies upon the land in question and moreover it appears from another exhibit that it was not a user within the meaning of Section 2 of the Easements Act. Of course it is quite conceivable that they might have been able to prove a custom to burn their dead bodies-see Mercer V/s. Denne [1904] 2 Ch, 534-where it was held that a custom for fishermen to spread their nets to dry on the land of a private owner at all times seasonable for fishing is a good and valid custom. In the present case no such custom is alleged, the plaintiffs started their claim as owners, while they are mere licensees.

(2.) We, accordingly, reverse the decree of the lower appellate Court and dismiss the suit with costs throughout.

(3.) It being proved that the defendants are owners of the land they are entitled to the tree in respect of which damage is claimed and so no damage can be allowed.