1. The plaintiffs sued for a permanent injunction restraining the 1st defendant from interfering with their customary right as villagers of Parali to graze cattle on a paramba belonging to 3rd defendant's sthanam, to walk across it, to perform certain ceremonies at the foot of an arasa or peepul tree on it, to perform pradakshinam round the tree and to use the tank for bathing purposes. The 1st defendant who obtained a melcharth in 1911 obstructed the plaintiffs from exercising these alleged customary rights.
2. The court of first instance dismissed the suit; the court of first Appeal allowed it and granted an injunction against the 1st defendant. In second appeal the suit was dismissed and against this decree the present Letters Patent Appeal is preferred.
3. Before us the right to grazing has been given up by the appellants; so the only matters in question are the right of way across the paramba, the right to bathe in the tank and the right to perform certain ceremonies round the peepul tree.
4. The first ground of appeal is that the learned Judge has interfered with findings of fact of the lower Appellate Court, In Kumarappa Reddi v. Manavala Goundan 44 Ind. Cas. 699 : 41 M 374 : 23 M.L.T. 44 : 34 M.L.J. 104 : 7 L.W. 243 : (1918) M.W.N. 350 (F.B.) it was laid down that:
The existence of a custom or usage having the force of law is a mixed question of fact and law Section 100, Civil Procedure Code, precludes the High Court from interfering in second appeal with the findings arrived at by the lower court of actual facts from which the existence of the custom has been inferred.
5. The learned Judge in this case says:
The evidence on behalf of the plaintiffs is that the inhabitants of Parali generally bathe in a river close by and that when the water of the river is muddy some of the people use the tank for bathing purposes and funeral ceremonies are sometimes performed under the peepul tree. Is this evidence sufficient to make out the customary right in favour of the plaintiffs? The acts of the villagers of Parali seem to be of too fugitive a character to establish a customary right in their favour. The facts on record are not sufficient to establish a valid custom.
6. It will be convenient here to take separately the right of bathing in the tank (which involves the use of the footpath) and the rights claimed with regard to the ceremonies at the peepul tree. In regard to the first it cannot be said that the learned Judge has misstated or altered any finding of fact on which the custom is to be inferred so that this particular objection does not seem made out. But he has certainly failed to notice or deal with a most important fact which largely forms the basis of the first Appellate Court's decision, namely, the two flights of steps to the tank and the paving. The case of the 1st defendant was that the tank was used solely for irrigation purposes, in which case flights of steps of this sort and paving would certainly have been very improbable. The learned Sub-Judge finds as regards the steps:
There is a flight of steps towards the whole of the eastern side of it.
Divided into two compartments (most probably for the use of men and women simultaneously). It is in evidence that these steps are paved with granite slabs here and there (probably for the use of washing clothes for bathers.
He then asks
Why was the tank so paved with two compartments and with so many conveniences? It must have been for the use of people of both sexes and bathing purposes.
Further on he says
The flight o steps must have been put up for the use of the villagers whoever it be that put it up. It is probable, therefore, that the pavement was put up by the villagers or at least for their convenient use by the 1st defendant's predecessor-in-interest. Whether it was put up by the prior kanomdars or by the villagers there can be no doubt that the villagers of both sexes were using it for bathing purposes.
And later on
I have no doubt upon the evidence as pointed out that the tank A 2 and the flight of steps throughout the eastern portions of it were being used by the plaintiffs villagers doubtlessly.
7. We have not got the benefit of any remarks by the learned Judge as to how he reconciles these flights of steps and the pavement with a fugitive use of the tank for bathing. It appears to us that they would never have been constructed merely for the convenience of a few people who only occasionally bathed in the tank when they found the river too muddy. On these facts we would find that the use of the tank for bathing was not fugitive.
8. The question of the ceremonies round the peepul tree is a little more difficult. The learned Judge says that only a few people went round the tree and only a few people performed funeral ceremonies under the tree and that it is not suggested that all the inhabitants of the village were in the habit of going round the tree. He quotes I Superintending Engineer v. Ramakrishnier 58 Ind. Cas. 885 : (1920) M.W.N. 495 : 45 M.L.J. 151 : 12 L.W. 193 : 28 M.L.T. 163. That case is not very authoritative because both the learned Judges agreed that the suit had to be dismissed for want of notice to the Government. With regard to the right of worshipping the idol raised in that case, of the two Judges, Sadasiva Ayyar, J., expressed to final opinion. Spencer, J., expressed an adverse opinion. Taluk Board, Dindigul v. Vankatramnier 75 Ind. Cas. 38 : 46 M.L.J. 333 : 18 L.W. 366 : 33 M.L.T. 40 : A.I.R. 1924 Mad. 197 quoted by the learned Judge in connection with the right to bathe in the tank does not seem quite parallel. The land in that case was a village site which the villagers claimed to use for threshing floor, storing manure and other agricultural purposes and which they, therefore, sought to restrain the Government from assigning as house-site. In that case Odgers, J., remarks:
The waste land in question was obviously used for any and all purposes or for several purposes at one or different times. Bach user was fugitive or intermittent so much so that as shown by the plaint itself, it is extremely difficult to say what the customary user sought to be established was. Indiscriminate miscellaneous user of village waste land cannot in my opinion establish the fact that such us had become a customary law of the place in respect of the persons and things which it concerned. The user here is much too indefinite to do anything of the kind.
9. On the other side Mangree Mian v. Behari Lal, 61 Ind. Cas, 132 : 61 Ind. Cas. 132 : 6 P.L.J. 11 : 2 P.L.T. 160 is quoted. This is a decision of the Patna High Court, in which the facts are very similar to those in the present case. It was held there that:
A suit by the residents of a village for k declaration that they have acquired the customary right of going over a particular plot of land belonging to the defendants for the purpose of worshipping a peepul tree and the idol of Sree Ganesh embedded in the tree and a tulsi chabutra, all situated on that plot of land and for a further declaration that the defendants have no right to obstruct the plaintiffs or other Hindu residents of the village in any way whatsoever from coming over the said land and worshipping the said peepul tree, the idol of Sfee Ganeshji and the tulsi chabutr a or to destroy, damage or desecrate the said objects of worship and also for a permanent injunction is maintainable and the custom pleaded is not unreasonable or invalid.
10. This is clear authority that such a custom can be established and no decision to the contrary has been quoted. While in this country it is no doubt specially necessary to stop such practices at the start and before they have become a custom if the owner objects to them, we find that in the present case the custom has been established. It does not seem a sufficient objection that all the villagers do not exercise it at the same time and perhaps some of them never. So far as funerals are concerned, it is naturally only the relatives of the particular deceased who would perform the ceremony. Although it does not affect the strictly legal aspect, it is clear that the real objection raised by the 1st defendant in the present case is to the right of way across the paramba and if this has to be allowed for the purpose of bathing in the tank the ceremonies round thepeepul tree will not materially add to his discomfort.
11. It was argued for the respondents before us that the body who claimed to exercise the right was not defnite because it is in evidence that other people coming to the village also exercised it. It may be noticed that the ground of appeal before the learned Judge in Second Appeal on this matter was not that the body was indefinite because it included persons of other villages but that:
Such an indefinite and uncertain body of persons as the inhabitants of a village cannot have a customary right to make a particular use of a particular thing in respect of property which does not belong to them.
12. It has not been attempted to argue before us here that the inhabitants of a particular village are not a sufficiently definite body of individuals for this purpose. When they claim as such a body, it is immaterial whether persons, with or without right, exercise a similar custom. The villagers only ask to have their own right declared.
13. The main ground relied on in support of the learned Judge's decree is that whatever the villagers might do cannot bind the jenmi since the persons who have been in possession of the property have only been limited owners under him and have been villagers themselves.
14. In this connection it is to be noted that no case of permissive user was ever set up nor was there any issue on the point so that the analogy of permissive user to a person to take water from a tap in a private compound which the learned Judge applies to the act of the villagers bathing in the tank, does not seem to be in point.
15. With regard to the jenmi in this case, Mr. Ramachandra Ayyar for the appellants states that the learned Judge has misrepresented him in saying that he met this objection by saying that one of the anandravans was aware of the user and therefore the sthanam must be taken to have been cognisant of what was going on. The person alluded to is P.W. No. 9. At the time of the institution of the suit he was karnavan, not an anandravan and he his now succeeded the 3rd defendant as sthani. The third defendant, the sthani at the time, the suit was instituted denied the plaintiff's claim and put in a written statement accordingly. He died and was succeeded by 24th defendant and the latter gave evidence in. his capacity as sthani as (P.W. No. 9). He fully supported the plaintiffs claims. He stated that he has been witnessing the custom claimed for 72 years. In the second appeal ha had in turn been succeeded by the 46th respondent in that appeal who no doubt supported the appellants side in that appeal.
16. We agree that when P.W. No. 9 as representing the sthanam gave evidence supporting the plaintiffs' case he must be held to have impliedly revoked the written statement of 3rd defendant, his predecessor. At any rate that written statement is of no avail in the face of his evidence. That answers the objection that the custom established against the limited owners will not bind the sthanam. The court of first appeal found as a fact that 'the uses were made openly to the knowledge of the jenmi as well as the kanomdar'. The injunction seems to have been granted against the 1st defendant only because he was the person principally objecting.
17. In the result, this Letters Patent Appeal is allowed with costs. The decree of the first Appellate Court will be restored with the exception that the words 'Grazing cattle' in Clause (a) will be omitted. As all the defendants or their representatives-in-interest are before us, the decree will also be altered by including them with the 1st defendant in Clause 'A' of the decree. Clause (b) will stand. The appellants will recover costs of, this appeal but a they failed in their claim to grazing in the second appeal and have given it up, here; each side will pay its own costs in the lower courts.