P.N. Shinghal, J.
1. This second appeal of defendant Ramchander Singh is directed against the judgment and decree of the learned Civil Judge of Jalore, dated March 20, 1959. It arises in these circumstances.
2. The parties are residents of Sayla, which was once a jagir village. Defendant Ramchander Singh, obtained a 'patta' from the other defendant Raghunath Singh, who was then the Jagirdar of the village, on December 4, 1954, for a piece of land in the village marked GDCYEF, made some construction on portion AXYD thereof, and also built a small platform on portion XDCY. All these have been shown in site plan Ex. 1. This was considered by the villagers, to be an encroachment on the village 'akhariya' (or common land at the extreme end of the village), which has been marked in green chalk in the site plan. The plaintiffs therefore, raised the present suit, in a representative capacity, in the court of the Munsiff of Jalore, on September 10, 1957. They pleaded that the portion of land marked GDCYEF, was a part of the village 'akhariya', which had been in existence, for over a hundred years and had been used as the common land of the village, for the grazing and resting of the village cattle. Thus the plaintiffs pleaded, that defendant Ramchander Singh reduced the size of the 'akhariya', resulting in general inconvenience to the villagers. They also pleaded, that the 'patta' had been obtained by Ramchander Singh, in collusion with defendant Raghunath Singh, as the latter had no authority to issue a 'patta' for land, which was meant for common use. The plaintiffs therefore, prayed for a declaration, that the piece of land marked GDCYEF, was meant for the common use of the villagers, and for the use of their cattle. They also prayed for the removal of the so-called illegal possession of Ramchander Singh, by demolishing the constructions made by him, and for the issue of a permanent injunction, restraining him from interfering with the aforesaid land or any portion of the village 'akhariya'. So also, it was prayed, that the 'patta' in favour of Ramchander Singh, may be cancelled.
Defendant Ramchander Singh admitted having taken possession of the disputed land, and obtained a 'patta' from defendant Raghunath Singh. He also admitted, that he had made the constructions referred to by the plaintiffs, but he pleaded, that he had done so after obtaining the 'patta', from the Jagirdar, and under the express authority of the village panchayat. All the other allegations of the plaintiffs were denied including the allegation, that the land was used for grazing the cattle. According to the defendant, the land in question, was an open piece of land and that was why the village cattle used to rest there earlier, but that on account of growth of population, the land had come within the inhabited portion of the village and its use as the resting place of the cattle was prejudicial to public health and sanitation. The defendant pointed oat that this was the reason why an order had been made by the Divisional Panchayat Officer, prohibiting the collection of the village cattle there, and that order had been duly implemented, by the gram panchayat. The charge of obtaining the 'patta' collusively, was also denied. Some other pleas were taken, but it is not necessary to refer to them. Defendant Raghunath Singh did not appear in the trial court and the case proceeded ex parte against him. The learned Munsiff ultimately decreed the suit on Novembar 24, 1958, and the contesting defendant's appeal, against that judgment and decree having been dismissed by the learned Civil Judge of Jalore, as aforesaid, defendant Ramchander Singh has preferred this second appeal.
3. As both the courts below, have taken the view that the suit land is a part of the village 'akhariya', and that the plaintiffs had been using it, for resting their cattle, over a long period of time, the first question for consideration is, whether that finding of fact is binding on this Court. I have no doubt, however, that, for reasons to be mentioned presently, the finding is vitiated by several errors of law.
4. Firstly, a perusal of the impugned judgment shows, that the learned Civil Judge ailed to appreciate the difference between a customary right and a customary easement, for he has used these terms indiscriminately, as if they were synonyms. It is not surprising, therefore, that he should have failed to appreciate the precise nature of the controversy and the kind of evidence, necessary to prove the plaintiffs' claim. Secondly, the learned Civil Judge went to the extent of travelling beyond the scope of the controversy, in holding that the land was used for other public purposes, like the holding of fairs, burning of 'holi', and resting of marriage parties. As I shall show a little later, the plaintiffs did not claim any such user of the land, in their plaint and did not join issue thereon. The learned Judge therefore fell into the error of giving his finding, without regard to the pleadings and the points at issue between the parties. Thirdly, he did not at all take note of the order of the Divisional Panchayat Officer, dated July 12, 1957, prohibiting the collection of the village cattle, on the so-called 'akhariya', although that order had been duly tendered in evidence, and had been proved. So also, the learned Judge failed to take note of the order of the gram panchayat, dated October 1, 1957, notifying the aforesaid order of the Divisional Panchayat Officer, for compliance by all concerned. This evidence was important, for the purpose of deciding whether the so-called 'akhariya', could be used any longer as the resting place of the cattle, and the failure to consider it is another defect in the judgment of the court below. Fourthly, the learned Civil Judge did not consider the evidentiary value of the fact that it was the grain panchayat which had granted the sanction on April 29, 1957, to defendant Ramchander Singh, allowing him to make the disputed constructions, on the suit land.
As the common lands of the village vested in the gram panchayat, by virtue of Section 88 of the Rajasthan Panchayat Act, 1953, this fact had a bearing on the point in controversy, and there is justification for the submission that an important piece of evidence has been left over altogether from consideration. In view of these serious defects, in appreciating the real nature of the controversy and evidence on the record, I have no doubt that the finding of fact of the courts below, even though concurrent, is vitiated and cannot be said to be binding on this Court. It is therefore necessary for me to go into the controversy, once again.
5. What then is the right or easement which the plaintiffs have claimed over the land in dispute? In para. (1) of the plaint, they have stated, that the land was used for grazing and resting the cattle and for the common use of the village, bat in paras. (5) and (7) the only common use claimed by the plaintiffs is, that of grazing and resting the cattle. The defendant, as has been stated, denied the existence of any such right and the point was covered by issue No. (1). A reading of that issue clearly shows that the only common use claimed by the plaintiffs was of grazing and resting cattle, and no other. That this was so, becomes all the more clear, from a reading of the statement of Chaina P. W. 2, who is one of the plaintiffs and is the oldest witness examined in support of their claim. He has stated that the 'akhariya', was used for the purpose of resting the cattle. The witness has not made a reference to the use of the land, for the purpose of burning 'holi', holding fairs or reception and departure of marriage parties etc. These additional uses were asserted by some of the other witnesses of the plaintiffs, and I have no doubt, that they have made them up in order to inflate their claim. This they could not do, and I would therefore confine the plaintiffs' claim, to the user of the land as the place for grazing and resting the village cattle.
6. So far as grazing the cattle is concerned, it would be sufficient to say, that the plaintiffs have not at all succeeded in proving, that the land has been used as a pasture land. In fact, their learned counsel has frankly conceded, that this is not so and he has confined his arguments to the other claim that the land was used for resting the cattle.
7. In order to decide this claim, it is necessary to consider its legal aspect, for, as has been mentioned, the learned Judge of the lower appellate court has described it variously as a customary right or a customary easement. That there is a vital distinction between these two claims is very well recognised. Custom governs both of them, for it is custom which gives rise to a right to property known as a customary right, and also to what is known as a customary easement. A custom is a rule of conduct, which is observed by the persons concerned spontaneously, without the sanction of any express provision of the law, because it has been uniformly observed by the community for a sufficiently long period of time. Thus the aggregated repetition of the same fact or actions hardens into a custom by efflux of time and becomes widely and well recognised as a rule of conduct governing all concerned. So a custom can give rise to a right as well as to an easement. There is, however, a vital difference between the two.
8. The Indian Easements Act, 1882, deals with customary easements. It refers to customary rights as well, but that is for the purpose of making it abundantly clear that while the Act governs the former, it has no concern with the latter. Thus while Section 4 of that Act defines an ''easement' as a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue, to prevent something being done, in or upon, or in respect of certain other land not his own, and Section 18 of the Act, deals with customary easement and provides that it may be acquired in virtue of a local custom, Section 2 (b) of that Act refers to a customary right in the following manner,--
''2. Nothing herein contained shall be deemed to affect any law not hereby expressly repealed; or to derogate from -
(a) * * * * * (b) any customary or other right (not being a license) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property; or (c) * * * * *'
It would thus appear that a customary right is so vastly different from a customary easement that the Easements Act does not at all deal wish it and, on the other hand, expressly excludes it from its scope and purview. The real distinction between the two has been ably set forth, in Frederick Peacock's well-known treatise on the Law relating to Easements in British India, at page 205 of the second edition, as follows :--
'Customary easements, as they are called in Section 18, of the Indian Easements Act, should be distinguished from the customary rights referred to in Section 2 Clause (b), of the same Act. The latter are rights arising by custom, but unappurtenant to a dominant tenement. No fixed period of enjoyment is necessary to establish these rights, but the custom must be reasonable and certain.'
As a matter of fact, the distinction was clearly brought out as far back as 1895 in Kuar Sen v. Mamman, ILR 17 All 87, when it was observed that there could be no right of easement, where there was no dominant tenement or heritage. The same distinction was pointed out in Palaniandi Tevan v. Puthirangonda Nadan, ILR 20 Mad 389. Then in Ganpat v. Narayan, AIR 1933 Nag 74, it was observed by Pollock, A. J. C. that a customary easement can exist 'only for the beneficial enjoyment of other land' and that it is 'merely appurtenant to the dominant heritage and cannot exist in gross', whereas, 'a right over property that exists in gross and not for the beneficial enjoyment of other property is not an easement, though it may be a customary right'. The same view was reiterated by that learned Judge in Sabasha v. Baba Narayan Lokras, AIR 1938 Nag 177. Then there is the judgment in Harisadhan De v. Radhika Prosad, AIR 1938 Cal 202 which brings out the same main point of distinction.
9. Realising this vital distinction between a customary right and a customary easement, the respondents learned counsel Mr. Parekh, made the submission that the plaintiffs' claim may be taken to be a claim for a customary right, and not by way of a customary easement. I shall therefore proceed to consider the question, whether the alleged customary right has been proved by the plaintiffs.
10. As the right is claimed by virtue of a custom, all the essential characteristics of a custom, bearing on it, have to be established. Thus it has to be seen, whether it has been proved that the right was certain and invariable, and that its enjoyment was not by leave or permission. Then it has to be seen whether the custom could be said to be reasonable and whether it has been in existence for a fairly long period of time. A great deal has been written in various well-known works, on the mode of proving a custom, but I would content myself by saying, that the evidence, by the very nature of the claim, has to be such that it may go to establish that the right was consciously accepted, as governing the locality concerned in respect of the point covered by it. I can recall Sections 13, 32(4), 43 and 48 of the Evidence Act as having a bearing on the mode of proving of such a right.
Thus, by virtue of the aforesaid Section 13, any transaction by which the right or custom was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence; as well as particular instances, in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from, would be relevant facts. So also, by virtue of Section 32(4), the statement made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, is relevant, if it gives the opinion of any such person, as to the existence of any public right or custom, subject to the other requirements of the section. Then Section 43 is also relevant inasmuch as judgments falling within the purview of Section 13 of the Evidence Act are also relevant and have been recognised to be valuable evidence in such cases. Moreover, by virtue of Section 48, the opinions as to the existence of such custom or right, of persoms who would be likely to know of its existence, if it existed, are also relevant. It has therefore to be seen whether, any such evidence has been led and whether it is sufficient to establish the alleged customary right.
11. It has not been disputed before me, that the 6 witnesses examined by the plaintiffs to prove their alleged customary right, have not deposed about any transaction or particular instance within the meaning of Section 13 of the Evidence Act. Their evidence does not also fall within the purview of Section 32(4) and no judgment bearing on the point has been cited, so as to attract Section 43. The evidence falls only within the purview of Section 48 of the Evidence Act, for what the witnesses have stated is that cattle used to rest in the so-called 'akhariya' while going to the grazing ground and returning therefrom. Such an evidence may be found to be satisfactory and sufficient in a given case, but not in this case.
At one time, the land in question was admittedly situated at the extreme end of the village and beyond it, and this is why the plaintiffs have called it as the village 'akhariya'. It was then an open land, through which, it is admitted, there was a passage for the inhabitants and the cattle. The land had not been assigned to any one and was in fact, incapable of personal protection or use because nobody was individually interested in it. It was therefore natural that it should have been put to indiscriminate use and the village cattle might have found it convenient to rest there while going out for grazing or returning to the village. No one could possibly object, if the cattle tarried there for it did no harm to any one, and there was also no question of any prejudice to the public health or sanitation. As a matter of fact, there was no other possible use of the land at that time. Such a user was therefore much too fugitive, and permissible to be of the nature of a customary tight. In fact petty jagirdars like defendant Raghunath Singh could hardly be expected to look after the sanitation and public health of the villagers in a small settlement, like village Sayla and there could possibly be no objection if the cattle stayed on the village common land, for a while, particularly when it lay on their way to the pasturage and was situated at the extreme end, virtually outside the inhabited portion of the village. No local body was in existence there, until the jagir was resumed and the State Government set up a net-work of panchayats, under an over-all plan of village uplift and development.
12. I have therefore no doubt, that the use claimed by the plaintiffs was clearly fugitive and permissive and that it was not by way of a customary right.
13. Then there is the further fact that the population of the village has increased, as time has gone by and it is not disputed that the so-called 'akhariya' is now very much within the precincts of the inhabited portion of the village. Its sanitation is therefore an important responsibility of the village panchayat, and it is not surprising that the Divisional Panchayat Officer should have made the order dated July 12, 1957, prohibiting the collection of cattle in inhabited areas. As has been stated, that order has been implemented by the Sayla gram panchayat. This shows that the fugitive use claimed by the plaintiffs is no longer permissible and cannot be recognised. In fact a right to use the place for resting the cattle within the inhabited portion of the village is not a reasonable right and it cannot be enforced for that reason as well. I am fortified in this view by the decisions in Taluk Board, Dindigul v. Venkatarama Aiyar, AIR 1924 Mad 197 and Ganga Ghulam v. Sheo Mangal Bajpai, AIR 1943 Oadh 83. In first of these cases, it was claimed, that the site had been used as a thrashing floor tor storing manure and green leaves, for stocking hay-stacks immediately after the harvest, for drying paddy before they were taken to the granaries of the ryots, for allowing their cattle, buffaloes, etc., to stray, and remain there before they were taken for grazing and for other incidental innumerable purposes connected with agricultural operations. Their Lordships took the view that the right was patently permissive for such user did no harm to any one and was unobjectionable until the land was wanted for its legitimate purpose. A similar view has been taken in Ganga Gulam's case AIR 1943 Oudh 83.
14. Mr. Parekh has however, placed reliance on Ramaswami Iyer v. Secretary of State, AIR 1931 Mad 213 for a submission to the contrary. But the facts of that case were quite different, inasmuch as it was found that the 'land had been classified in the settlement record as 'mandai (cattle stand) poramboke'. That description in the Government record, involved recognition of the claim in the suit, that the land was a cattle stand, but still it was held, that that description was only some, and not conclusive, evidence that the land had been set apart for that purpose. The view which prevailed in the case was, that the customary right of the plaintiff was not an absolute one, in the sense that it had to remain intact and inviolate through all time, irrespective of changed conditions or circumstances. Venkatasubba Rao J., who decided the case made a reference to Halsbury's Laws of England, for taking the view that the right was capable of reasonable modification and extension. The learned Judge further took the view that in deciding what is a reasonable right, the court can have regard to the changing and fluctuating circumstances. He therefore nagatived the right in the public interest, under changed conditions. That judgment, to say the least, cannot therefore be of any avail to the respondents.
15. In the view I have taken, I have no doubt that issue No. 1 must be decided against the plaintiffs And as they have no cause of action, their suit must be dismissed without considering the other points at issue between the parties. The appeal is therefore allowed, the impugned judgment and decree of the learned Civil Judge are set aside, and the suit is dismissed with costs.