1. This is a second appeal by the plaintiff and arises out of a suit instituted by them for a declaration that they have a right to take earth from field No. 111 of Mauza Shegaon Buzruk belonging to the respondent for preparing earthen pots and for a permanent injunction restraining the respondent from obstructing them from taking earth from this field.
2. It is common ground that this field was the banjar land of the lambardar and was purchased from him by the respondent on 13-12-1948. The appellants claim is that the kumbhars of the village have a customary right to remove the earth from the western side of this field and that there is actually in existence a pit on that side. The existence of this pit is admitted by the respondent, according to whom, its dimensions are 25' x 20' x 4'. The sole question to be determined in this case is whether the appellants have acquired a customary right to take earth from the aforesaid pit. Whether this customs exists or not is a mixed question of fact and law.
3. What has been established in this case is that the Kumbhars of the aforesaid village used to take earth from the pit on the western side, mix it with the earth of the village tank and then prepare earthen pots out of their mixture and that they have been doing so for about 30 years. Could it be said that this is a good custom and if so whether it could be recognized by the Court on the ground that it has been in existence for a long time?
4. It may be mentioned at the outset that Shri Mangalmurti, who appears for the respondents, relying upon the decisions in Bholanath Nundi v. Midnapore Zemindary Co. Lt. 31, Ind. App 75 (PC) (A) and Lakshmindhar Misra v. Rangalal contended, in the first place, that a custom of this kind should have been in existence from time immemorial. In the first mentioned case, their Lordships mentioned the fact that the plaintiffs had claimed a right of pasturage over the waste lands on the ground that the right was enjoyed by them and their predecessors from time immemorial. Dealings with this point their Lordships observed in their judgment:
'..the right of pasturage claimed has been enjoyed by the plaintiffs and their predecessors from time immemorial - from the time of the Hindu Rajahs - long before the Watsons had anything to do with the property.'
From this it would be clear that the expression 'time immemorial' was understood by their Lordships not in the sense in which it was understood, i.e., prior to the year 1189, but in a different sense. No doubt, in the second mentioned case, their Lordships have observed at page 59:
'What the Courts have required of a customs, if the law is to uphold it as a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use. It is by these tests that the appellants' claim in this case must be tried.'
The Courts referred to by their Lordships were the Courts in England. In that case, however, their Lordships have not considered what was exactly intended to be understood by the expression 'time immemorial'. Indeed, all that was established in that case appears to be that the right claimed was exercised from generation to generation and nothing more. In the circumstances and in view of other decision so their Lordships, I do not think it will be proper to infer that the expression 'immemorial origin' is to be understood in India in the same sense as in England. In this connection I may refer to Musammat Subhani v. Nawab 68 Ind App 1 at p. 31 : AIR 1941 21 in which their Lordships have observed:
'It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of the particular district.'
Again, in Baba Narayan v. Soboosa their Lordships have observed that in India a custom need not be immemorial, and all that is required is the evidence of long usage, and quoted with approval at the following from Kuar Sen v. Mamman ILR 17 All. 87 :
'The statute law of India does not prescribe any period of enjoyment during which, in order to establish a local custom, it must be proved that a right claimed to have been enjoyed as by local custom was enjoyed.'
I therefore do not accept the argument advanced on this point by Shri Mangalmurti.
5. Then Shri Mangalmurti says that the right exercised by the appellants cannot be upheld as a customary right inasmuch as what the appellants claim to have done was with the tacit approval and consent of the owner. In this connection he referred to an admission of the plaintiffs contained in the application made by them to the Tahasildar to the effect that they used to give some earthen pots to the malguzar. Now, in the first place, it is not clear from this whether such pots were given annually or at any fixed interval or otherwise; nor is ti clear whether the pots were given by way of consideration for permitting the appellants to remove and utilise the earth from the field or merely as presents. It would not, therefore, be safe or proper to infer from this circumstances that the Kumbhars removed the earth from the field with the approval and consent of the malguzar.
6. Then Shri Mangalmurti says that there is no certainty about the custom because the appellants are not themselves sure as to the exact portion of the field from which they could remove earth. No doubt, the plaintiff only says that the appellants have a right to remove the earth from the western half portions of the filed and does not make any further specification as to the exact place from which they have the customary right to remove the earth. However, it has come in evidence that they exercised their right only over that portion of the field which is covered by the pit in question.
7. In Mohidin v. Shivlingappa ILR 23 Bom 666 a similar objection was taken. Dealing with it, the learned Judges observed : 'Here the defendants have, it is true, failed to set any limit to the space which they wish to use as a burial ground. But we must not confuse their wishes and their rights. They wish for the privilege of burial all over survey No. 1131. Their right according to custom as found by Assistant Judge seems to be to bury round about the darga. Because they fail to prove all they wish, there seems no reason for denying them the rights which they establish. A plaintiff may claim Rs. 1000/- but if the evidence shows that he is only entitled to Rs. 100, he will get a decree for the latter sum albeit his claim as stated is not fully proved. What then is the uncertainly connected with this right of burial? There is no uncertainty as to the class of persons who have been in the habit of burying near the darga. It is not denied that the defendants belong to that class.....The only point which can be said to be uncertain relates to the limits within which burials must be made. Those limits have not been defined. But we think that they are sufficiently indicated by the restriction of the right to a limited class and by the obligation to bury near the darga.'
8. The learned Judges, therefore, upheld the custom, limiting it of course to that portion of the darga which was referred to in the evidence as having been used a the burial ground. The same can be done in this case.
9. Shri Mangalmurti then stated that the custom pleaded is not reasonable because as a result of it the respondent will not be able to use this field for cultivation. Now, if the right is restricted to this pit, it is difficult to see how the respondent will be prevented from cultivating the field. In a case of this kind a direction similar to the one given by their Lordships in Bholanath's case (A) could be made. In that case the villagers had claimed a right of pasturage over the waste lands belonging to the defendants.
Their right was affirmed by their Lordships but they amended the decree of the Subordinate Judge in terms providing that the plaintiffs should not prevent the defendants or their successors-in-title from cultivating or executing improvements upon the waste lands in question so long as sufficient pasturage is left for the plaintiffs and the other persons entitled to the right of pasturage claimed, with liberty to the parties, from time to time, in case of difference, to apply to the Subordinate Judge as they may be advised.
10. The last argument and which is the strongest argument, urged is that the claim is in the nature of a right in gross or profit-a-prendre and where such a right is claimed by a fluctuating body of persons it cannot be acquired by a custom. According to Shri Mangalmurti, it could be acquired by dedication or grant. He points out that it has not been alleged by the appellants that their right originated in either of these ways. In support of his contention he relies upon a large number of cases, starting from Lutchmeeput Singh v. Sadaulla Nushyo ILR 9 Cal 698 . The other cases are :
Syed Ali v. Sajan Ali 18 Cal WN 735 : AIR 1914 Cal 158 ; Abdul Husain v. Sadai Gobinda Deb 42 Cal WN 1102 ; Kunja Paria v. Nitya Nanda 53 Cal WN 346 ; Brajendra Kishore Roy v. Bama Charan : AIR1933Cal539 ; Arjun Kaibarta v. Manoranjan De : AIR1934Cal461 , and many other cases.
11. Indeed, it has been pointed out at page 9, Joshi's Easements and Licenses, Second Edition :
'Though in England, as well as in India, customary rights in gross in alena solo in favour of a fluctuating body of persons have been recognized freely, yet in England it may be taken as settled law that a fluctuating and uncertain body of persons cannot claim a profit-a-prendre by custom, for, such rights are deemed unreasonable, as they tend to destroy the subject matter of the right itself. In case of ILR Cal 698 the Calcutta High Court refused to recognize fishery rights in favour of a fluctuating body of persons, and thus followed the principles of English law. A different view has however been taken by the Patna High Court in Mahrajbahadur v. Gandhori Singh AIR 1917 Pat 640 , where a right to hunt in a certain forest and to appropriate the game hunted therein was recognized in favour of a fluctuating body of persons.
With submission it is suggested that the judgment of the Patna High Court in the last mentioned case, if as widely applied as proposed therein, would cause much hardship to private owners by making their tenements liable to subserve to the uncertain needs of a fluctuating body of persons. : AIR1933Cal539 . Therefore, if ti is accepted that a fluctuating body of persons cannot acquire by custom a profit-a-prendre, it cannot be said that the villagers or a particular community in a village can be regarded as a fluctuating body of persons.
In Bholanath's case (A) the right to graze cattle on waste lands was claimed by the persons living in the village on the ground that all the villagers had such a right. It was not negatived on the ground that such body of person must be regarded as fluctuating and therefore incapable of acquiring a customary right by long usage. Now, it may be mentioned that the right of pasturage claimed was not by way of an easement but it was claimed by way of a customary right. It seems to me therefore that this decision would afford a complete answer to the arguments of the learned counsel Shri Mangalmurti.
12. In Bhiku v. Sheoram , aright of this kind was claimed by the Kumbhars of a particular village on the ground of custom and was upheld by the Court of Judicial Commissioner. It may be mentioned that in that case it was found that the right was exercised for a period of 20 years. In the present case, the right has been exercised for over 30 years. In the circumstances, therefore, I see no reason for not upholding the right.
13.Accordingly, I allow the appeal, set aside the decree of the lower appellate Court and restore that of the trial Court. Costs throughout will be borne by the respondent.
14. Appeal allowed.