1. The facts out of which this appeal arises, may be stated as follows:
2. The plaintiffs and the pro forma defendants are Muhammadan residents of a certain village. The defendant-appellant is a Hindu, a mahajan of the same village. The dispute relates to a certain plot of grove land therein situated.
3. The ancestors of the plaintiffs and of the pro forma defendants held this grove as tenants. They executed a series of deeds purporting to transfer whatever rights they possessed therein, to the defendant. A dispute having broken out between the parties, the present suit has been brought by the plaintiffs to enforce a right, alleged to exist in favour of the family of which the plaintiffs and it he pro forma defendants are members, to bury their dead in the said grove.
4. The Court of first instance apparently found that such a right did exist in favour of the family to, which the plaintiffs belong, but that this right extended only to a small portion of the grove in dispute. The learned Munsif, however, proceeded to grant the plaintiffs a declaration which was. so cautiously worded that it is difficult to conceive of what use it could have been to them; it is consequently not surprising that the defendant did not appeal against it. The plaintiffs appealed, and there was no cross-objection filed by the contesting defendant. It is only by reference to the judgment of the lower Appellate Court that one can ascertain whether he sought to support the decree of the Court of first instance on any of the points which had been decided against him. It does not appear to me that he did so.
5. The first issue as framed by the learned Subordinate judge in appeal, was in these terms:, 'Have the plaintiffs a right to bury their dead in the whole area of the disputed grove, or only in the particular portion of it specified in the lower Court's decree?'
6. The point has not been taken in second appeal that the frame of this issue begs the questions in dispute, or any of them, in favour of the plaintiffs. The learned Subordinate Judge, in spite of the curious frame of the first Court's decree, apparently understood the learned Munsif to have found in favour of the plaintiffs that they had a right to bury their dead in a certain portion of the disputed area, and he considered only whether that right did or did not extend over the whole area in dispute. If exception had been taken to this in the memorandum of appeal, I should have felt strongly disposed to remit an issue for a further finding. As the case for the appellant was put to me in argument, the notion that the lower Appellate Court had assumed any point against him without deciding it was expressly disclaimed. I was invited to consider that, in spite of the frame of the issue, the learned Subordinate Judge had in fact decided both points, viz., that there existed in favour of the plaintiffs, a right to bury their dad in the land in dispute and, secondly, that this right extended over and applied to the whole of the disputed area.
7. Of the pleas taken in the memorandum of appeal before me, those embodied in the 2nd, 3rd and 4th paragraphs, may at once be rejected. In the 4th paragraph, a point of law is sought to be raised which was not taken in either of the Courts below, and I do not think it is a question which I should permit to be raised at this stage.
8. The contention put forward in the second paragraph would seem to be that a right to use land for the burial of the dead can only exist to the extent of placing one dead body on the top of another, i.e., to a specific area already occupied by corpses previously interred. This seems to me obviously unsustainable. Nor does the fact put forward in the third paragraph, that the greater portion of the plot in dispute has been kept under cultivation by the appellant, seems to me in itself any reason for interfering with the decree of the Court below. It is quite conceivable that the plaintiffs might have a right to bury a deceased member of their family on a particular spot, even though the Surface of the ground at that point might be under cultivation by the defendant so long as it was not required by the plaintiffs for purposes of burial. The main contention in support of this appeal is that embodied in the first paragraph of the appellant's memorandum. As stated, the plea taken is that there cannot be any easement in law 'for burying the dead in a case like this;' I do not altogether understand what is meant by the words 'in a case like this,' but the argument as laid before me, is based on the provisions of the Indian Easements Act, V of 1882, and in so far as it rests upon that Act, it is unanswerable. The finding of the lower Appellate Court is that there exists in favour of the plaintiffs, or more strictly speaking in favour of the family to which the plaintiffs and the pro forma defendants belong, a customary easement of burying their dead in the entire area of the disputed grove. There certainly cannot be a customary easement' within the meaning of the definition in Section 18 of Act V of 1832, for the simple reason that the right set up is not within the definition of an easement in Section 4 of the same Act. It is not claimed by the plaintiffs, and has not been found in their favour in virtue of their ownership or occupation of any land other than the grove in dispute. There being no dominant heritage, there can be no easement at all within the meaning of Act V of 1882. What I really have to decide, is whether I ought on this ground to set aside the findings of the lower Appellate Court, and either reverse the decree of the learned Subordinate Judge or call for a fresh finding, or whether, on the other hand, I can regard the finding in favour of the existence of a customary easement as a finding that there exists a customary right of the nature of an easement, independently of the provisions of the Indian Easements Act, such as is safeguarded by the saving provisions of Section 2 of the Act itself. That there can be a customary right of burial under circumstances which obviously exclude the application of the provisions of Act V of 1882, for the reason already noted, i.e., the absence of any dominant heritage, I take to be settled law, as is apparent from such decisions as that in Mohidin v. Shivlingappa 23 B. 666 which rests in part upon a decision of this Court in Kuar Sen v. Mamman 17 A. 87 : A.W.N. (1895). There is no specific reference to the provisions of the Indian Easements Act in the judgment of the Court below, and it seepis more reasonable to suppose that the learned Subordinate Judge used the expression customary easement' loosely, instead of the words 'customary right in the nature of an easement,' than to assume that he was entirely ignorant of the provisions of the Indian Easements Act. Accepting the findings of the lower Appellate Court in this sense, it seems to me to be substantially a finding of fact, or at any rate to be one with which I ought not to interfere on any of the grounds put forward in this appeal. I am bound to say that I consider the case a somewhat unsatisfactory one. The pleading's of the parties have been loose throughout, and it does seem to me to be open to argument whether the Courts below have held the plaintiffs as strictly as they might have done to the case set up in their written pleadings. I must, however, give effect to the conclusion at which I have arrived by dismissing this appeal with costs.