ASRABULLA Vs. KIAMATULLA HAJI CHAUDHURY

JUDGEMENT

(1.) This appeal is on behalf of some of the defendants in a suit commenced by the plaintiffs on their own behalf, as well as on behalf of the inhabitants of Kedupur village, for establishment of a right of pasturage over the lands in suit. The defendants are residents of an adjacent village named Daudpur where the lands in dispute are situated, and they too have been sued in a representative capacity, as representing all the villagers with requisite permission under Order 1, Rule 8, Civil P.C. The case of the plaintiffs in substance is that from time immemorial the inhabitants of village Kedupur having been grazing their cattle in the disputed land openly and uninterruptedly and thereby acquired a right of pasturage therein. The right is claimed on the basis of a custom, as well as on immemorial user giving rise to a presumption of lost grant. It is claimed also as an easement of necessity. The suit was contested by some of the defendants, who traversed the material allegations in the plaint, and contended inter alia that the plaintiffs had not acquired any right either as an easement of necessity or by way of custom or implied grant.

(2.) The trial Court decreed the suit, holding that the plaintiffs had acquired a right of pasturage, on all the three grounds set out in the plaint, over plots Nos. 1 and 2 of the Commissioner's map, excluding certain portions which were specified in the decree. This decree was affirmed on appeal though the lower appellate Court negatived the claim of the plaintiffs, so far as it rested on the ground of its being an easement of necessity. It is against this decision that a second appeal has been taken to this Court and Mr. Gunada Charan Sen who has appeared in support of the appeal has pressed the following points on behalf of his clients. It has been contended in the first place, that no right of pasturage based on custom or otherwise could be claimed by the plaintiffs in view of the provisions of Section 6, Assam Land and Revenue Regulation, which prevent the acquisition of any such rights in the province of Assam. It is next argued that even if such rights could be acquired in law there could not be a grant, either actual or presumed, in favour of an indeterminate body of persons as the inhabitants of a village. The third contention is that the custom alleged by the plaintiffs and found by the Courts below is unreasonable; and lastly it is urged that there has been an irregularity in the procedure, which resulted in miscarriage of justice inasmuch as the notice under Order 1, Rule 8, Civil P.C., was actually served in the village, only three days before the hearing of the suit commenced, and the villagers in general who are bound by the decree had no opportunity of coming up and contesting the suit properly. As regards the first point, it is not disputed that the properties in suit are situated in the district of Sylhet, where the Assam Land and Revenue Regulation is in force. Section 6 of the regulation stands as follows: No right of any description shall be deemed to have been or shall be acquired by any person over any land to which this statute applies, except the following: (a) right of proprietors, landholders, and settlement holders other than landholders, as defined in this regulation and other rights acquired in manner provided by this regulation; (b) rights legally derived from any rights mentioned in Clause (a); (c) rights acquired under Secs.26 and 27 Lim. Act, 1877; (d) rights acquired by any person as tenant under the rent law for the time being in force.

(3.) If this section be taken to lay down exhaustively as to what kinds of rights over property one could acquire in the province of Assam, and if the acquisition of any other kind of right is distinctly prohibited, undoubtedly it favours the contention of the appellants, for the rights of pasturage claimed by the plaintiffs, do not come within Secs.26 and 27, Lim. Act, and it is not without doing violence to the language that one can speak of customary rights as coming within the provision of Clause (b) of the section. In our opinion, however, this wide interpretation would not be proper having regard to the scope and object of the regulation itself. The regulation does not purport to repeal all laws, so far as the province of Assam is concerned under which various other kinds of rights over property could be acquired, nor does it abrogate all customs or customary rights as invalid. It is to all intents and purposes a revenue Code and it provides for a variety of things including settlement of land revenue, preparation of record of rights, registration of transfers, partition of estates and the procedure to be followed in realising arrears of revenue. Ch. 2 of the regulation defines in the first place the rights of the different classes of owners of land in the provinces which are described under three heads as (1) proprietor, (2) landholder and (3) settlement holder, and Clauses (b), (c) and (d), Section 6 of the chapter enumerate the other rights over land, besides the three mentioned above, which are also recognized for purposes of this regulation.