Mookerjee and Teunon, JJ.
1. The substantial question of law which arises in these Rules is one of some novelty and nicety, and relates to the right of the purchaser of a putni taluk at a sale held under Regulation VIII of 1819 to hold the property free from a customary right or right recognised by usage, which has grown up during the subsistence of the putni, and under which occupancy raiyats are entitled to appropriate and convert to their own use such trees as they have the right to cut down. Upon the facts found by the Court below, the tenants defendants have cut down and appropriated several palm trees which stood on their holdings. They resisted the claim of the landlord petitioner for damages, on the ground that they had a customary right not only to cut down, but also to appropriate trees. This they have established by evidence ; but it is contended on behalf of the landlord that as this custom came into existence and gradually developed after the creation of the putni and during its continuance, and as he has purchased the property at a sale for arrears of rent under Regulation VIII of 1819, he is entitled to hold the property in the condition in which it was before the putni was granted, and he is not bound to recognise any customary rights that may have grown up in the interval. It may be added that the origin of the putni is not known, but the plaintiff appears to have made his purchase about sixteen years before the date of the suit, and he has recently succeeded in obtaining three decrees for damages against three tenants who had cut down and appropriated trees on their holdings ; two of these, however, were consent decrees, and the third was obtained ex parte. The Court below has, therefore, rightly treated these instances as insufficient to affect the validity and operation of the custom. The question which now demands investigation is, whether this customary right can be successfully asserted by the tenants against the plaintiff. For the solution of this question, it is necessary to examine for a moment the manner of the origin and growth of a customary right of this description.
2. In the case of Palakdhari Sai v. Manners (1895) I. L. R. 23 Calc. 179 , this Court was called upon to consider the nature of the custom or usage by which an occupancy raiyat is entitled to transfer his holding without the consent of his landlord. Reliance was then placed upon a passage from a judgment of the Judicial Committee in Juggomohun Ghose v. Manick Chund (1859) 7 Moo. I. A. 263, 282 , where their Lordships, in dealing with the case of a mercantile usage, observed as follows : 'To support such a ground, there needs not either the antiquity, the uniformity, or the notoriety of custom, which in respect of all these becomes local law. The usage may still be in the course of growth ; it may require evidence for its support in each case ; but in the result it is enough if it appear to be so well known and acquiesced in, that it may be reasonably presumed to have been an ingredient tacitly imported 'by the parties into their contract.' This passage indicates the mode, if not of the origin, at' any rate of the growth of a customary right, or right recognised by usage. Substantially the same view has been indicated in other cases of the highest authority. Thus in Arthur v. Bokenham (1708) 11 Modern 148, 161 , Trevor, O.J., points out that customs owe their origin to common consent, and must consequently have been peaceable and acquiesced in and not disputed at law or otherwise, and observes as follows : ' Customs are not to be enlarged beyond the usage, because it is the usage and practice that makes the law in such cases, and not the reason of the thing, for it cannot be said that a custom is founded on reason, though an unreasonable custom is void; for no reason, even the highest whatsoever, would make a custom or law, and therefore you cannot enlarge such custom by any parity of reasoning, since reason has no part in the making of such custom :' see also Dane's Abridgement, Chapter XXVI, Article 1, Section 3. If, therefore, customs owe their origin to common consent, and because they recommend themselves as expedient to all, by what precise process do they become binding on parties who enter into contractual relations As Tilghman, C.J., puts it in Stultz v. Dickey (1812) 5 Binn 285, ' When the custom of a country or of a particular place is established, it may enter into the body of a contract without being inserted ; both parties are supposed to know if and to be bound by it, unless provision to the contrary in made in the contract.' To the same effect is the judgment of Baron Parke in Button v. Warren Clerk (1830). 1 M. & W. 406, where that learned Judge observes as follows : ' It has long been settled in commercial transactions that evidence of custom and usage is admissible to annex incidents to written contracts in matters with respect to which they are silent.' The same rule has also been applied to contracts in other transactions in life in which known usages have been established and prevailed, and this has been done upon the principle of presumption, that in such transactions the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but to contract with reference to those known usages ': see also Gibson v. Small (1853) 4 H. L. C. 353, 397 , where Baron Parke treats the same principle as applicable to agricultural contracts, and the notes to Wigglesworth v. Dallison (1779) 1 Douglas 201. We start, therefore, with the proposition that agreements founded on consent are the origin of customs ; such agreements, though at first matters of option, when they are established as customs, cease to be matters of choice, and acquire an obligatory element or a binding force. When the custom or usage has become developed and has acquired a binding character, it becomes by implication incorporated into transactions, and can no longer be ignored when the rights of the parties thereunder come to be determined. When, therefore, a landlord acquiesces in a certain course of conduct by his tenants, for instance, an appropriation by them of the trees in their holdings, and such acquiescence has led to the growth of a custom or usage which is binding upon him, the position of the parties is the same as if the landlord had expressly granted to them a right to appropriate the trees. The question now arises, whether the grant of such right is an incumbrance, which is inoperative as against the purchaser of the putni taluk, or whether it is a bond fide engagement with the tenant which is protected by the law.
3. Now it is well settled that property in trees is by the general law vested in the zemindar. The tenant is entitled to cut down trees, provided there is no local custom to the contrary, but he can appropriate the trees when felled, only if such appropriation is sanctioned by local custom: Nafar Chandra Pal Ghowdhuri v. Sam Lal Pal (1894) I. L. R. 22 Calc. 742, Nuffer Chunder Ghose v. Nund Lal Gossyamy (1890) I. L. R. 22 Calc. 751 , Sitab Rai v. Dubal Nagesia (1907) 6 0. L. J. 218 , Kausalia v. Gulab Kuar (1890) I. L. R. 21 All 297 , Ganga Dei v. Badam (1908) I. L. R. 30 All 134, Ruttonji Eduljee Shet v. Collector of Tanna (1807) 11 Moo. I. A. 295, Honywood v. Honywood (1874) L. R. 18 Eq. 306 ; Taylor on Landlord and Tenant, Section 354.
4. When, therefore, tenants who have originally no right to appropriate trees which have been felled, are allowed to do so, and this course of dealing is acquiesced in for a length of time, and in numerous instances so as to ultimately entitle the tenants to a customary right of appropriation, tacitly incorporated into their contracts, the result is a substantial encroachment upon the rights of the landlord. Can such a right be properly described as an incumbrance within the meaning of Section 11 of Regulation VIII of 1819 That section does not define the term ' incumbrance,' but provides that, when a putni taluk is sold for arrears of rent, it is sold free of all incumbrances that may have accrued upon it by act of the defaulting proprietor, his representatives, or assignees. As instances of incumbrances, we find mentioned in the same section transfers by way of sale, gift or otherwise, mortgages and other limited assignments, and also leases created by the holder of the tenure. A customary right of the description mentioned would not be included in any of these specific illustrations. At the same time it would not be right to treat the instances of incumbrances mentioned in the section as absolutely exhaustive. It becomes necessary, therefore, to examine for a moment the meaning of the term 'incumbrance.' Wharton, in his Law Lexicon, defines an incumbrance as 'a claim, lien, or liability attached to property, ' which definition is adopted by Romer, J., in Jones v. Barnett (1899) 1 Ch. 611, 620. Sweet, in his Law Dictionary, observes that to encumber land is to create a charge or liability, for example by mortgage, and adds that incumbrances include not only mortgages and other voluntary charges, but also liens, lites pendentes, registered judgments and writs of execution. In the Oxford Dictionary, an incumbrance is broadly defined as a burden on property, and reference is made to Bacon's Maxims and Uses where he speaks of certain acts as collateral incumbrances. In the Encyclopedia of American and English Law, an incumbrance is defined as a burden upon land depreciative of its value, such as a lien, easement, or servitude which, though adverse to the interest of the landowner, does not conflict with his conveyance of the land in fee. Similar definitions are given in the Law Dictionaries by Abbott and Anderson. Bonvier, in his Law Dictionary, defines an incumbrance as ' any right to, or interest in, land which may subsist in a third person to the diminution of the value of the land, and not inconsistent with the passing of the fee in it by a deed of conveyance, ' which is taken from the decision in Prescott v. Trueman (1808)4 Mass. 627 . In Memmert v. McKeen (1886)112 Pa. 315, an incumbrance is stated to be a burden or charge on property, a claim or lien on an estate, which may diminish it in value, and incumbrances are then divided into two classes, namely, first, such as affect the title to the property ; and secondly, such as affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former, while a public road or right of way is an illustration of the latter. The definitions which we have quoted above are comprehensive enough to include a right granted to a stranger to cut and appropriate trees, and there is in fact one judicial decision Cathcart v. Bowman (1847) 5 Barr. 317 where this view has been maintained--a view which has the support of more than one leading text-writer : Tiffany en Real Property, Volume II, 906, and Jones on Real Property, Volume I, 755, and Rawle on Covenants of Title, 98.
5. It is obvious that if a right granted to another to cut and appropriate trees on land is treated as an incumbrance, a customary right which has precisely the same effect may be comprehended in the term incumbrance. Reference may in this connection be made to the decisions in Womesh Chunder Goopto v. Raj Narain Roy (1868) 10 W. R. 15, Khantomoni Dasi v. Bijoy Chand Mahatab Bahadur (1892) I. L. R. 19 Calc. 787, and Nuffer Chandra Pal Chowdhry v. Rajendra Lal Goswami (1897) I. L. R. 25 Calc 167, which recognise the doctrine that the title acquired by adverse possession against a putnidar is an incumbrance that has accrued upon the taluk by the act of the defaulting proprietor. By way of analogy, it may well be maintained that a customary right which owes its origin and growth to the acquiescence of the landlord stands on the same footing as a right expressly granted by him ; so that, if a right to cut and appropriate trees expressly conferred on a stranger be treated as an incumbrance, a customary right of that description may very well be included in the same category. We are consequently not prepared, as at present advised, to overrule the contention that a customary right to cut and appropriate trees may be an incumbrance on the property. But we are of opinion that even if this view be maintained, the plaintiff is not entitled to succeed. The third clause of section 11 of the Putni Regulation provides that the purchaser shall not be entitled to cancel a bond fide engagement made by the defaulting proprietor with resident and hereditary cultivators. The cases have been argued before us on the assumption that the tenants in these cases fall within this description. If the landlord made an engagement with such a tenant that he would be entitled to appropriate the trees in his holding, the purchaser of the putni taluk would, in our opinion, be bound thereby. A customary right in favour of all the tenants, by which they are entitled to appropriate the trees, would be equally operative against the auction-purchaser. It is further obvious that, as pointed out by this Court in Majoram Ojha v. Raja Nilmoney Singh Deo (1874) 13 B. L. R 198 : 21 W. B. 326 , the fact that the auction-purchaser is the original zemindar who created the putni does not place him in a better position. We must, therefore, hold that treating an engagement with a stranger by which he is authorised to cut and appropriate trees as an incumbrance imposed upon the land by the owner, treating further a customary right of this description, which owes its origin and growth to the acquiescence of the owner, as included in the category of incumbrances, the creation or growth of such right, whether contractual or customary, must, in the present instance, be regarded as a bond fide engagement with a resident and hereditary cultivator, which the auction-purchaser at the putni sale is not entitled to abrogate.
6. We desire to add that no arguments were addressed to us upon the question of the possible effect of the doctrine of acquiescence upon the position of the plaintiff who has accepted rent from the tenants for sixteen years after his purchase ; nor was there any discussion at the Bar as to how far the tenants as occupancy raiyats might be protected under the Bengal Tenancy Act. Our judgment, therefore, must not be regarded as a decision upon either of these questions, or as an approval by implication of the principle laid down in Jogeshwar Mazumdar v. Abed Mahomed Sirkar (1890) 3 C. W. N. 13 .
7. The result is that these Rules must be discharged with costs.