1. The above Second Appeal arises out of a suit on behalf of the Lingayat Veershaiva Samaj of the Sangli Town, and raises an important question as to whether the Sangli City Municipality could be permanently restrained from constructing a road measuring 20 x 300 feet within the limits of the suit burial land, bearing R. S. No. 564, on its southern boundary, in exercise of its powers under the law under which it was constituted.
2. The suit was instituted by the two plaintiffs belonging to the Lingayat Community of Sangli City, under Order 1, Rule 8 of the Code of Civil Procedure, 1908. It is not disputed that the Lingayat Samaj or Veershaiva Samaj was using the suit burial ground bearing R. S. No. 564,situated at Sangli. The land is entered in the record of rights as a burial ground (Masanvati). It is also not disputed that in the said burial ground Lingayat Community of Sangli bury the corpses of the dead members of the community and perform the funeral rites. There are also tombs and high mounds over the burial ground in which the corpses have been previously buried.
3. According to the Plaintiffs, the Sangli City Municipality was not, in any way, concerned with the suit burial ground. There is another burial ground in Survey No. 20 to the South of the suit burial ground within the limits of the Haripur village. The Municipality acquired the land R. S. No. 565 to the west of the suit burial ground, and wants to allow it to be used as a cremation ground for all Hindus other than the Lingayat Samaj. The said cremation ground of R. S. No. 564 is on the bank of the river Krishna; to its East, is the land R. S. No. 562 and beyond that, is the road going from Sangli to Haripur village.
4. The Defendant Sangli City Municipality tried to construct a road measuring 20 x 300 feet, on the southern boundary of the suit burial ground of R. S. No. 564, by force, for going to the said cremation ground of R. S. No. 565 from the land of R. S. No. 562. The people of the Lingayat community protested against this act of the Defendant Municipality. They requested the Municipality not to construct the road by treading over the buried bodies of the members of their community in the suit burial ground. The Municipality was thereafter warned by the police, and made an application to ftx the boundary between the suit burial ground and the Western Cremation ground of Hindus bearing R. S. No. 565.
5. At that time, the Plaintiff No. 1, Sheshyappa Bala Bolaj, raised an objection and protested. The Municipality then applied to the Village Talathi for entering its name, in the record-of-rights, in respect of the suit burial ground; and accordingly mutation entry No. 4011 was made in its favour in pencil, notwithstanding the Plaintiff's protest and objection.
6. The Municipality then acquired from one Rajaram Tukaram Patane a portion of his land bearing R. S. No. 31 touching the suit burial ground to itsSouth and encroached upon the suit burial ground, and constructed a road, measuring 20 x 300 in the suit land, for going from R. S. No. 562 to the said cremation ground of R. S. No. 565, very hastily, on or about Feb. 15 or 16, 1965, with the help of a steam roller by levelling and sectioning the land and by treading over the dead bodies of the Lingayat Samaj, thus injuring and wounding the feelings of the said community.
7. The Plaintiffs, therefore, sent a protesting telegram, on February 15, 1965, to the Municipality. The protest fell on deaf ears. Therefore, the Plaintiffs, called upon the Municipality, by a notice, dated Feb. 22, 1965, to remove the encroachment from the suit burial ground and tender an apology to the Lingayat community. The Municipality, by its reply, dated March 18, 1965, refused to do so. The Plaintiffs, therefore, filed, on April 5, 1965, the suit for a permanent injunction as stated above.
8. The suit was stoutly resisted by the Municipality by filing its Written Statement Exh. 19, raising all sorts of contentions, including a contention that the village of Sangli and Sangliwadi were granted to the Ganapati Panchayatan Sansthan as Inamdar to reserve places in the village, as burial or cremation grounds, for various communities; and in pursuance of this, the suit land of R. S. No. 564 had been reserved as a burial ground for the Lingayat Samaj of Sangli; that Hindus, other than Lingayats, residing in Sangli, were using the bank of the river as a cremation ground with great inconvenience and trouble especially in a rainy season; that, therefore, with a view to allotting to such Hindus a separate and convenient cremation ground, the Defendant Municipality acquired the land R. S. No. 565 to the West of the suit land and to the East of the river Krishna; that there was no approach road to the cremation ground of R. S. No. 565 except the sarbandh (boundary line), and that therefore, the Municipality sought permission from the Rajasahab of Sangli to construct a road through the suit land of R. S. No. 564.
9. The Rajasaheb of Sangli informed the Municipality that he had no objection; but even then, the Defendant-Municipality, with a view not to injure the religious feelings of the Lingayat community, thought it not proper to construct the entire road through the suit land to go to the western cremation ground ofR. S. No. 565; and therefore, the Municipality decided to purchase the necessary portion from out of the Southern land of R. S. No. 21 falling within the limits of the village Haripur, and took possession of that piece of land from the owner of the said land accordingly. The Municipality denied that by doing so, they had wounded the feelings of the Lingayat community.
10. It was also submitted that as per the provisions of the Bombay District Municipal Act, it was the duty of the Municipality to manage, supervise etc., over the burial grounds within the municipal limits, and that it was equally its duty not to cause any inconvenience to other communities while seeing the convenience of a particular community; and the Municipality was, therefore, constructing the road without causing inconvenience to both the communities.
11. It was further contended that the suit burial ground having been reserved as a burial ground for the Lingayat community, it could not become the property of Lingayat community; and the Lingayat community cannot claim ownership on that property or an injunction on the basis of an encroachment on the property merely because a part of the land in question had fallen into the suit burial land, while taking the road on the sarbandh of the suit land and the southern land of S. No. 21. According to the Municipality, there was no encroachment at all and the suit in the present form could not be maintained as the suit burial ground did not belong to the Lingayat Samaj. The suit was based on a wrong assumption that the Defendant Municipality cannot do anything in respect of the suit lands as it was reserved as burial ground for the Lingayat Samaj; and hence, the suit was liable to be dismissed with costs.
12. The learned Civil Judge, Junior Division, Sangli, framed as many as 8 Issues. On behalf of the Plaintiffs, Plaintiff No. 1 was examined with regard to the use of the land for burial by the Lingayat community. The Municipality examined its overseer one Barve, and one Ranade, the manager of the Ganapati Panchayatan Sansthan. On the basis of this evidence, arguments were heard by the learned Civil Judge, who dismissed the suit with costs on March 26, 1968, because -
(1) the Lingayat Veershaiva Samaj failed to prove that it was the owner of the suit burial ground;
(2) the Municipality proved that the suit burial ground originally belonged to Sangli Ganapati Panchayatan Sansthan, and thereafter, in pursuance of the Agreement dated Feb. 27, 1960, Exh. 52, the suit burial ground vested in the Municipality;
(3) that under the said agreement Exh. 52, the Municipality had all the rights in respect of the management and control over the suit burial ground and other burial grounds, although the right of revocation and resumption continued to be vested in the Ganapati Panchayatan Sansthan; and thus, when permission was sought from the Ganapati Panchayatan Sansthan for making a road through the suit burial ground, by a letter of the President of the Municipality, dated Feb. 3, 1959, Exh. 38, the permission was endorsed by the Diwan of Rajasaheb, on behalf of the Rajasaheb of Sangli, the Sole Trustee of the Ganapati Panchayatan Sansthan, which clearly showed that the Rajasaheb of Sangli had no objection for constructing the road through the suit burial ground if there was no objection on the part of the Lingayat Samaj, and this showed his intention that the Municipality should take care to see that the feelings of the Lingayat community were not injured, and in these circumstances, the Plaintiffs had no right to object to the road being constructed by the Municipality, observing in paragraph 14 of his judgment as follows :
'The Defendant has nowhere claimed any title to the suit land but as per the agreement Exh. 52 it has only stepped into the shoes of the Ganapati Sansthan and has acquired certain rights of management and control over the suit burial ground and other burial grounds falling within its jurisdiction, subject to certain conditions mentioned therein, It is thus seen from the discussion of the aforesaid evidence both oral and documentary that the Plaintiff-Lingayat community has miserably failed to establish its title to the suit burial ground. On the contrary the suit land vests in the Ganapati Sansthan and as per the agreement Exh. 52 the Defendant having stepped into the shoes of the Ganapati Sansthan has got certain rights with respect to management and control subject to certain conditions mentioned in the said agreement Exh. 52.' (4) Further, even the portion of 20 x 300 feet used while preparing theroad, cannot be said to be an encroachment in the strict sense of the term as It comprised only one Guntha as shown in the map Exhibit 23, as, the Municipality had, before making the road, purchased the adjoining land to reduce the burden on the suit burial ground, and the one Guntha of land, which was used for the road, was a hard and thick soil and no dead bodies were buried there, and the map Exh. 23, showed that the dead body was found while making the road not in the suit burial ground, but in the land to the South of the suit burial ground.
13. He further held :
'As the Municipality has become a grantor in place of the Ganapati San-' sthan it can for certain purposes revoke the assignment by choosing another land or by taking some portion from out of the suit land for a just and charitable purpose like the one disclosed in the present suit before us. We have seen in above lines that the Municipality for the sole purpose of getting an access to the western cremation ground of 565 prepared the road in question by utilising minimum of the portion from out of the suit burial ground and that too at the southern most South-West corner of the suit land. By doing this it cannot be said that the Municipality has in any way contravened any of the conditions set out in the said agreement Exh. 52. When a diversion of one guntha of land is thus taken it cannot be said that the main condition or purpose set out in Exh. 52 is being contravened by the Municipality. It has been held in Valliammal v. State of Madras, : AIR1967Mad332 , that the State has power to close down an existing burial ground when the State is convinced that the location of the burial ground is injurious to the public or a section of the public. It is also laid down in Section 253 of the Maharashtra Municipalities Act, 1965 that the Collector after considering the opinion of the Municipal council if he deems fit, can direct that a particular place shall cease to be used as a place for disposal of dead and he can accordingly order the closing of such a place. It is therefore clear that the Municipality as per the conditions laid down in the said agreement Exh. 52 cannot be said to have in any way encroached upon the suit land by making a portion of the road in the suit land. The road in question without taking the said diversion in one guntha of the suit landcannot be joined and cannot be completed so as to have an access to the western cremation ground of 565 and the Municipality therefore in my opinion has rightly under the powers which it has received as per the agreement Exh. 52 used the minimum portion of the suit land on its southern boundary for a just and proper purpose. It cannot, therefore be said that the Defendant in any way while preparing the said road offended the religious feelings of the Lingayat-commu-nity.'
14. It appears that the Municipality further filed a purshis Exh. 54, undertaking to take from the South-West corner of the suit burial ground only that much portion which is absolutely necessary for constructing the road through it, with a view to getting access to the western Survey No. 565, and has further undertaken to fence the road on both sides as a special case. In view of this, the learned Judge held that the intention of the Municipality was not to wound the feelings of the Lingayat community, but bona fide; and hence, the learned Judge dismissed the suit, holding that the Plaintiffs were not entitled to possession of the encroached portion.
15. The decision of the learned Civil Judge was challenged by the Plaintiffs In an appeal, which came up for hearing before the Extra Assistant Judge, Sangli, who, by his Judgment dated April 30, 1969, set aside the decree passed by the trial Court, and decreed the Plaintiffs' suit, ordering the Municipality to deliver vacant possession of the encroached portion of one Guntha to the Plaintiffs, and perpetually restraining the Municipality from interfering with the Plaintiffs' possession of the land bearing Revenue Survey No. 564, observing as follows, relying on a book by one R. C. Burke, named as 'Notes on the Sangli State', and some more witnesses examined before him by the Plaintiffs :
'Now, it is not disputed that the Lingayat community has been using the ground to bury it's dead since at least 1878-79. The ground has not been put to any other use and the grant made by the Ganapati Panchayatan Sansthan has been revoked. No part of the land has been resumed by the Ganpat Panchayatan Sansthan. Even when it was a question of constructing a road by the Defendant, the sole trustee made it clear that the road could be carved out in the land provided there was no objection to thatcourse from the representatives of the Lingayat community. The carving out of the road by the defendant was not an act in conformity with the consent of the Lingayat community. So long as the grant subsist and the land is not resumed by the Ganapati Panchayatan Sansthan, the Lingayat community's user cannot be interfered with. In taking away some part of the land for carving out a road, the defendant has exercised a power which does not vest in it. The trustee of the Ganapati Panchayatan Sansthan had specifically written that the road could be built only if there was no objection from the Lingayat community. Defendant does not profess that the road was built with the consent of the community. In fact, the community or at least some people belonging to it, were very much against the idea of a road through their burial ground.'
16. The learned Extra-Assistant Judge further observed with respect to the Agreement Exh. 52, that the powers of the Municipality were restricted to management of the burial grounds and it would not include the power to divest those using the ground as burial ground to meet the grievance of another community, and thus, according to the learned Assistant Judge, the Municipality had no right to take away one Guntha from the burial ground used by the Lingayat community for construction of the road to be utilised by the Hindus as an access to their cremation ground. The judgment and decree passed by the Extra Assistant Judge, on April 30, 1969, are challenged in the above appeal, by the Municipality of Sangli.
17. Mr. Naik, the learned Counsel appearing for the Municipality, contended that as the portion which was utilised for making the road was not used for burial, and Exh. 52 conferred on the Municipality the power to manage the burial ground, the Municipality had every right to construct a road on the boundary of the suit burial ground, and for that purpose, to take away the area of the disputed one Guntha, and the Lingayat community not being the owner of the burial ground, had no right to object to the same.
18. This argument Ignores the well settled law in India with regard to burial grounds. Any Indian community which buries its dead, generally regards the land to which the deceased members of the community are buried as sacred or charmed or hallowed or at least to beundisturbed. The members of the families of the dead are usually or at least on occasions, in the habit of performing certain religious services at their tombs. The ownership of the soil may be vested in others, but the permission to bury in the land, granted as it must be subject to the custom of the community, carries with it the right to perform all customary rites, in the burial ground. This is the usage of the country and since Bombay Regulation IV of 1827, the courts in this part of the country have always decided the right in respect of burial land according to the usage of the country. What the learned Assistant Judge has done in the present case, therefore, is in accordance with the said usage; and settled law; and must be upheld.
19. Thus, in Mohidin Valad Sultan v. Shivlingappa Bin Bandeappa (1899) 1 BomLR 170, Mr. Justice Candy and Mr. Justice Fulton, fully concurred with the remarks in Kaur Sen v. Mamman, (1895) ILR 17 All 87, on the subject of customary rights, repelling the contention about the custom of burial rights over land belonging to strangers, and observed:
'Amongst all races that bury their dead, this right of burial in a particular locality is one that is most clearly prized and although the plaintiff's land may be rendered practically useless, if these tombs are multiplied exceedingly, the contingency seems too distant to justify the Courts in summarily putting an end to the right. In Hall v. Nottingham ((1875) 1 Ex D 1) the possibility that the custom there set up might have the effect of taking away from the owner of the freehold the whole use and enjoyment of his property was not thought a sufficient ground for disallowing it. x x x x
X X X X X X X The mere possibility that after many years the number of tombs may have increased so much as to deprive the owner of the use of his field or of a large portion of it seems too remote to enable us to describe as unreasonable the custom in dispute.'
20. Similarly, in Ramrao Narayan v, Rustomkhan, (1901) 3 Bom LR 717, Fulton and Crowe JJ., have observed at page 718, with regard to a Muslim burial ground:
'The land in dispute, it has been found, is a graveyard, disused it may be for 20 to 30 years, but retaining none the less its character as such. By the custom of the country foundedon a sentiment which may almost be described as universal that the ground in which human remains are interred is regarded as for ever sacred. The members of the families of the dead are in the habit of performing certain religious services at their tombs. The ownership of the soil may be vested in others, but the permission to bury in the land, granted as it must be subject to the custom of the community, carries with it the right to perform all customary rites. The District Judge may have gone too far in inferring from the facts which he found proved that the land was the property of the Mahomedan community. But those facts certainly justified him in confirming the decree of the Subordinate Judge which directed that the plaintiffs, whose relatives have been there burned, have the right of performing all such worship and ceremonies near the makan and the graves on the ground in dispute as are enjoined by the Mahomedan custom and religion. Regulation IV of 1827, Section 26 requires the Courts to decide according to the usage of the country and that usage in our opinion amply supports the decree which has been passed.'
20-A. Again, in re Mukundraj Atmaram Desai, 18 Bom LR 554 : (AIR 1916 Bom 122), where the District Magistrate of Broach, had issued the following order:
'All persons are hereby informed that nobody should bury corpses in the kharaba of the Sarkari bet adjoining the Ovara of Dashashwamedh of anywhere (else) in the Zadeshwar bet; and if anybody does so, he will be criminally prosecuted for disobedience to this order', a Division Bench of this Court, consisting of Batchelor and Sir Lallubhai Shah JJ., held that the order was wholly without jurisdiction,
21. It must be noted that Bombay Regulation IV of 1827, Section 26, is very much in force, even now, in this part of the country, and runs as follows:
'The law to be observed in the trial of suits shall be Acts of Parliament (of the United Kingdom) and (Indian laws) applicable to the case, in the absence of such Acts and (laws), the usage of the country in which the suit arose; if none such appears, the law of the defendant; and, in the absence of specific law and usage, justice, equity and good conscience alone'.
22. In the present case, the Plaintiff/ Lingayat community was relying on theusage, which was undisputed, of using the suit burial ground for the deceased members of that community for a period from prior to 1878; and, therefore, the learned Assistant Judge was quite right in deciding the matter in accordance with the said usage, which has been recognised in this Court, for over a century as is clear from the cases cited above.
23. It is also useful, in this connection, to refer to the decision of the single Judge of the Lahore High Court, in Shamasuddin Khan v. Abdul Aziz AIR 1932 Lab 423, where it was held that:
'Where graveyard is reserved for the use of a community, and one member of it prevents common use of it by leasing it out for drying chillies, etc., he is guilty of trespass on person as much as on land, It is a trespass on the person in the sense that feelings and sentiments of persons are outraged by seeing the graves of their ancestors desecrated'.
24. In arriving at this conclusion, he relied on the decision of this Court, in Anandrav Bhikaji Phadke v. Shankar Daji Charya, ILR (1888) Bom 323, and a decision of the Privy Council in D. R. K. Saklat v. Bella, AIR 1925 PC 298, though the said cases were not concerned with graveyards.
25. In the circumstances, neither the Agreement Exh. 52, to which the Lingayat community was not a party, nor any provisions of the Bombay District Municipal Act, 1901, which governed the Municipality at the relevant time, nor the Maharashtra Municipalities Act, 1965, empowered the Sangli City Municipal Council, Sangli, to take away the 1 Guntha of the land from out of the suit burial ground used by the Lingayat community, brushing aside the well established usage and law governing the burying grounds.
26. Mr. Naik, the learned counsel appearing for the Appellant Municipality, was unable to point out any provisions therein, justifying the action of the Municipality in depriving the Lingayat community of the use of the suit burial ground He could only argue that because Lingayat community was not the owner of the burial ground, the Lingayat community could not object to the taking over of the land, which contention, as already stated above, is against the settled law, governing the burial grounds. Moreover power of management orsupervision can never mean or imply a power to encroach or destroy contrary to law and usage.
27. It is also necessary, in this connection, to refer to Art 25 of the Constitution of India, guaranteeing freedom of conscience and free profession, practice and propagation of religion, subject to public order, morality and health and to the other provisions of Part III of the Constitution. Under clause (2) of Art. 25, it is only when the State makes a law, subject to complying with the provisions of that clause, that it may be possible to interfere with the rights like the burial rights.
28. In the absence of such a law, the Municipality cannot rely on its agreement with the Ganapati Panchayatan Sansthan, or the permission of the Sole Trustee of that Panchayatan Sansthan, to encroach upon the rights of the Lingayat community to bury their dead in the suit burial ground.
29. The learned trial Judge had erred in law, in ignoring the settled law and the provisions of S, 26 of the Bombay Regulation Act, (whose application to Sangli is not questioned before me) and the rights based on the usage, which existed in the burial land; and further erred in holding that there was no encroachment, only because a small southern portion, not actually used for burying dead bodies, was being taken. It was not necessary that every portion of the land should have been used by the Lingayat community for burying the dead bodies before the community could complain about the encroachment.
30. What matters are the feelings of the community regarding their burial ground, if the Lingayat Samaj's feelings are hurt by encroaching upon the said burial ground, there was clearly even an encroachment on the fundamental rights of that community as well as the well settled rights of the community regarding burial, based on long established and un-disputed usage. The learned Assistant Judge, was therefore, quite right in setting aside the judgment and decree of the learned Civil Judge.
31. In the result, the above Second Appeal is dismissed with costs.
32. Appeal dismissed.