(1.) The litigation which has led to this appeal might, we think, have been avoided by the exercise of some common sense and toleration. The question before us is whether the members of the Muhammadan community in the village of Behta Goshain in the district of Budaun have a right to slaughter cows within their own premises in the village for the purpose of daily food as well as for sacrifice under any limitation or otherwise. The village in question has a population of about 3,000, of whom leas than a thousand are Muhammadans and the remainder Hindus. The defendants on the 16 of November 1903 applied to the District Magistrate of Budaun for an order that the Muhammadans in the village might be forbidden to slaughter kine in the village. A charge was thereupon preferred against the plaintiff Shabhaz Khan and others, purporting to be under Section 107 of the Criminal P. C.. On the 6 of December 1903, the District Magistrate passed an order prohibiting the slaughter of any cattle in the village. In his order he states as follows: "It appears that the Hindus for outnumber the Muhammadans. I find there are other villages in this thana circle where slaughter never takes place and where it would be strongly objected to, at Bilsi itself, for instance. There is in. fact a general understanding that it should only be allowed in places where it has been customary. For these reasons I forbid it in Behta Goshain." The following also appears in the order: "As there is some ill-feeling over the matter, a copy of this order is to go to the Sub-Divisional Magistrate with a view to proceedings under Section 107 of the Criminal P. C.. If any action is taken the leaders of both sides should be bound over but as the Muhammadans are in the wrong no security more than is absolutely necessary should be taken from the Hindus. " Although this order purports to have been passed under Section 107 it is clear that it was not an order under that section. Whether indeed it is anything more than mere brutum fidmen it is difficult to say, but, whatever it be, it is clear that the members of the Muhammadan community in the village of Behta Goshain cannot slaughter kine except at the risk of criminal proceedings. This order of the Magistrate was confirmed by the Commissioner on the 18 of February 1904.
(2.) The plaintiffs, feeling aggrieved at the prohibition of the exercise of what they conceived to be their legal rights, instituted the suit out of which this appeal has arisen.
(3.) The defendants took defence and denied the right claimed by the plaintiffs and put forward the case that there was no custom of slaughtering or sacrificing cows in their village, and that the plaintiffs were not competent to do anywhere in the village any act which might be injurious or annoying to the defendants or repugnant to their religious feelings. They also denied that a suit of the kind was cognizable in the Civil Court. The learned District Judge decided this last issue in favour of the plaintiffs, and we think rightly. The right denied was, as he said, a right of a substantial and valuable nature and not of the nature of a right to a mere dignity or privilege unconnected with fees or emoluments, such as were dealt with in the cases to which he referred. He, however, dismissed the plaintiffs claim on the ground that they had failed to prove that they had continuously slaughtered kine for consumption at the slaughter-house in the village, or had continuously in observance of the sacrifice of kurbani killed kind on the Id-ul-Zuha in the slaughter-house or in their houses. The burden of proving such custom he laid upon the plaintiffs and dismissed the suit. He further found that the plaintiffs could in no case be entitled to a declaration as against the world of a right to slaughter cattle.