1. This is a second appeal by six plaintiffs against a decree of the lower Appellate Court dismissing their suit and the prayer is that the decree of the trial Court by which their suit was partly allowed should be restored. The plaintiffs consist of five Ahirs and one Gaderia, that is, they are all persons whose livelihood is gained by keeping cattle. The plaintiffs asked for a declaration that a certain house and enclosure in the village were not saleable in execution of decree No. 9 of 1933 and that the sale was null and void. The ground for the declaration was that the house and enclosure were appurtenant to the 'Than' or 'Isthan' of a village deity named Mahikhasur where the plaintiffs and other villagers go to worship. The particular worship alleged was that of making offerings to the Brahmin family who conducted the worship at the platform or 'Than' when the cattle of the cattle-owners were afflicted with disease. The defence was that there was no such 'Isthan' in the house and that the house was ordinary private property of the Brahmins. The Brahmin family is as follows:
JAWAHIR = MT. PARBATI
2. The mortgage in question is dated 27th May 1925 executed by Mt. Gango and her son Nandan Singh in favour of Dip Chand who is the father of Basdeo, defendant 1, and Basdeo's three sons are defendants 2 to 4. A decree was obtained on this mortgage and the declaration asked is in regard to this decree. The trial Court found that it was not proved that the house was appurtenant to the 'Than' but that the 'Than' did exist and it granted a decree in the following terms:
That it be declared that there is a Than of the village god Mahikhasur in a room of the house in suit and the plaintiff and the other members of the public have a right to go and worship it. The sale of the room containing the Than or of the Than is null and void and cannot affect the right of the plaintiff or the other members of the public to worship at the Than. The sale of the rest of the house in suit and the Gher in suit is valid. The suit in respect of the rest of the house and the Gher is dismissed. The parties will bear their own costs of the suit.
3. It is this order in decree that we are asked to restore in this appeal. Now the findings of fact of the Court below are as follows : That there was a judgment of 12th February 1904 in a suit filed by one Govind Ram against Mt. Parbati claiming a rateable share in the offerings of the temple and that suit was decreed by the trial Court but dismissed in appeal on the finding that Govind Ram had rival temple and was claiming a share from the temple of Mt. Parbati out of malice. The Court held that this established that Mt. Parbati had a temple in the year 1894. The Court proceeds to find:
The parties admitted that there is no image of any deity except a raised platform on which people come and put their offerings to crave the good will of the supposed deity in the interest of their suffering cattle in order to cure them. The room containing this platform is, according to the plaintiff' own evidence, still utilized by the owners for their personal requirements as of sitting and sleeping. So I doubt very much whether this show of the plaintiff ii would give them any right in this house except that they as members of the public might have come to give some offerings to Mt. Gango or her son Nandan in interest of their cattle...I think the plaintiffs failed to prove the dedication of this particular piece of land and the room to anything religious and spiritual...I have grave hesitation to give to this platform the same sanctity as Is duo to a temple or a mosque. I rather take it to be a haunt of a speculative man in the spirit of carving out a livelihood in the shape of offerings from certain believers which I think should not and perhaps does not extend to it the sanctity due to a temple or to a mosque...In short I take this to be the personal property of Jawahar and his descendants....
4. The Court also referred to a sale of the house to Indarman in 1935 to pay off the decree of Basdeo. Now learned Counsel for the respondents cannot show anything on the record to support this finding of an alleged sale which is not mentioned by the trial Court. It would appear therefore that in part the decree of the Court below is based on evidence which is not on the record. The quotations which we have made from the judgment of the Court below indicate that the Court considered that there must be some image or idol or some dedication in order that the particular 'Than' should be considered to be a religious place where the public had a right of worship. The fact that the public had been going there and making offerings was found by the lower Appellate Court as a fact but the Court considered that some further findings were necessary in order that the public could have any right to continue to make their offerings. Now the Court itself admits that no particular act is necessary to signify a dedication and that is a point which is also admitted by learned Counsel for the respondents. The Court below seems to think that because these offerings were made to a Brahmin family therefore it was a case of Brahmin family carving out a livelihood from these offerings and this would in some way detract from the right of the persons who made the offerings. Such offerings are always handed over to Brahmin Pujaris and the fact that the pujaris take the offerings does not in any way detract from the right of the persons who make the offerings to continue to do so.
5. A further argument was made by learned Counsel for the respondents, Dr. Malaviya, that this platform was not connected with a deity but with a demon. There is nothing to support this argument in the findings of the Court below as that Court speaks of Mahikhasur as a deity and not as a demon. But even if the point were correct, the case would be very similar to the burning of fire at the Holi. A case recently came before this Bench in which it was held that there was a customary easement of certain residents of the mahalla in a town in Aligarh District to burn the Holi on a piece of ground appurtenant to the house of a party to the suit : Lakhmi Chand v. Moti Lal : AIR1939All165 . Such customary easement comes under Section 18, Easements Act. It is true that in the present case there was no specific pleading of Section 18, Easements Act, but the facts proved would come under that Section. That is, finding that the plaintiffs as owners of cattle resident in that village have been accustomed for a long period of time to make offerings when their cattle are afflicted by disease and those offerings are made at that particular is than in that room does constitute a right of the plaintiffs to continue to make those offerings. For these reasons we consider that the decree of the trial Court is correct and that the decree of the lower Appellate Court should be set aside. We therefore set aside the decree of the lower Appellate Court and restore the decree of the trial Court with costs to the plaintiffs throughout.