G.N. Das, J.
1. These appeals are on behalf of the plffs. appellants. Second Appeal No. 1571 of 1943 arises out of Title Suit No. 103 of 1941. In this appeal the plffs. pray for a declaration of their right of pasturage over the banks of a tank known as Chapra tank & for a further declaration of a right of burial on the southern part of the northern bank of the said tank. They also pray for a permanent injunction restraining the defts. from interfering with the exercise of their right of pasturage & right of burial as aforesaid. The suit was framed under Order 1, R. 8, Civ. P. C. on behalf of the villagers of a village known as Debgram. The right was based on immemorial user & was claimed under three heads, viz., (i) easement of necessity, (ii) lost grant, & (iii) customary right.
2. The other S. A. No. 1572 of 1943 arises out of Title Suit No. 105 of 1941. The plffs. are the same in this suit & the right is claimed over the banks of a tank called Boaria tank. The right that is claimed is one of pasturage as in the other appeal.
3. The defence in both the suits is a denial of the existence of the right of pasturage & of the right of burial as claimed in the aforesaid two suits.
4. The trial Court found that the villagers of the village Debgram used to graze their cattle on the banks of the two tanks. But the trial Court refused to declare the right of pasturage on the ground that a right of easement of necessity cannot be claimed on behalf of the villagers of a particular village. The right cannot be claimed on the basis of a lost grant, because a floating body of persons cannot claim a right on this ground. The right of pasturage on the ground of custom was negatived because in some other tank, known as Barapukur, the owner of the tank re-excavated the same & threw earth on the banks of the tank interfering with the right of pasturage & this indicated that the right was not uniformly claimed. In the result, the right of pasturage was negatived. As regards the right of burial, it was held by the trial Court that the right cannot be claimed in law as a prescriptive easement, or on the basis of lost grant, or on the ground of customary right because the right claimed was unreasonable, the exercise of the right being prejudicial to the health of the people of the locality. The two suits were accordingly dismissed.
5. Against the decree's of dismissal, the plfls. preferred appeals to the lower appellate Court. The lower appellate Court observed that it was in substantial agreement with the findings of the trial Court, & maintained the decrees of dismissal on grounds similar to those on which the trial Court had proceeded. The plffs. have accordingly preferred these appeals.
6. Mr. Sarkar, for the appellants, has first dealt with the right of pasturage which was claimed in the two suits. He has argued that the right of pasturage could be claimed on behalf of the plffs., first on the basis of a lost grant, secondly as an easement of necessity & thirdly as customary right. He has also contended that the right of burial was available to his clients on similar grounds in Second Appeal No. 1571 of 1943. We shall deal with these contentions now. We prefer, however, to deal with the second ground raised by him, viz., that the right of pasturage can be claimed as an easement of necessity.
7. It is submitted that there are as many as three hundred heads of cattle in the village & that the pasture lands, apart from the disputed banks of the tank, are insufficient to sustain the cattle of the village. It is, therefore, argued further that the right of pasturage is necessary for the preservation of the cattle of the village & should be decreed as an easement of necessity. This contention is obviously unsound. An easement is a privilege annexed to some property to be enjoyed over some other property. A right of pasturage claimed by the villagers is claimed by them as residents of a defined locality; there is no dominant tenement in such a case to which the right can attach. A prescriptive right of easement, therefore, is wholly untenable where the villagers claim a right of pasturage.
8. The further argument that the right can be claimed as an easement of necessity because the villagers find it necessary for the preservation of their cattle is also unsound. The argument so raised is opposed to the fundamental concept underlying easement of necessity. Easements of necessity are based on a fiction of wise paternal guidance, having its origin in the maxim of Code Civil 'destination de fere de famille' which means that when a father divided his lands amongst his children, mutual conveniences as regards the user of the different allotments are implied by a fiction of law for the beneficial enjoyment of the different portions so allotted. This fiction which originated in the case of a division of lands by the father among the children was extended to strangers, 'Suffield v. Brown', (1863) 4 De G J & S.185.
9. The popular notion that whenever a man has no other way, he can claim the right to go lover his neighbours' lands is not supported either by principle or by authorities. Easements of necessity, or quasi-easements as they are called, are founded on an implied grant or reservation. The principle underlying such easement was stated in Rolle's Abridgement in the following words: 'The grant of a thing passes everything included therein without which the thing granted could not be held.' This principle underlies Section 13, Easements Act, (Act XV (15) of 1882). Such easements, therefore, arise out of disposition made by an owner of several heritages, viz., cases of transfer, partition, etc. Such implication have also been made in case of compulsory acquisition of lands under the Land Acquisition Act, 'Vithal Sakharam v. Collector', (1874) P. J. 118. The right, however, has been denied where a person acquires title to a portion of the land under the 'statutes of Limitation, 'Proctor v. Hodgson', (1855) 10 Ex. 824 & 'Wilkes v. Greenway', (1890) 6 T L R 449. It is obvious, therefore, that the right does not arise in every case in which the property becomes useless without an easement being raised in favour of the party claiming it. The right is implied only in cases of severance of tenements, Goddard's Law of Easements, 8th Edn. 338. In Gale on Easements, 11th Edn. 181, foot-note (m), it is pointed out that in order to found a claim to an easement of necessity, unity of ownership of the dominant & servi-. ent tenement at some time or other is essential. The same principle underlies the cases of 'Menzies v. Breedalbane,' Mew's Digest, (1902) Clause 94, 'Wheeldon v. Burrows', (1879) 12 Ch. D. 31; Tustee Mondal v. Kenaram Mondal', 34 C. L. J. 518, 'Sarojini Devi v. Krista Lal', 36 C. L. J. 406; & 'Dakshina Ranjan v. Surendra', 39 C. W. N. 1202. The argument in so far as it founds a right of pasturage as a prescriptive easement or an easement of necessity must, therefore, be overruled.
10. The second ground raised by Mr. Sarkar that the right of pasturage can be claimed on the basis of a lost grant in view of the finding of the Courts below that the right of pasturage has been enjoyed for a long series of years, must also be overruled for the reasons which we shall advert presently. Mr. Sarkar contends that a right of pasturage on a fiction of lost grant is sustainable in law; it was so held by the Judicial Committee in the case of 'Bhola Nath v. Midnapore Zemindary Co', 31 Cal. 503. He relies strongly on the declaration made in that case which was in favour of the plffs. & the 'other' persons entitled to the right of pasturage.
11. In the first place, it has to be observed that the substance of the pleadings & the issues which are set out in the report, clearly show that the right was not claimed on the basis of a lost grant. The decision of the Judicial Committee proceeded on two observations made by their Lordships in their judgment. These observations are as follows:
'The right of pasturage claimed has been enjoyed by the plffs. & their predecessors from time immemorial, that is from the time of the Hindu Rajas. There was no difficulty in the way of finding a legal origin for the right claimed.'
These observations do not show that their Lordships intended to rest their decision on a fiction of lost grant. They merely stated that the legal origin has got to be inferred. Such a legal origin may have rested on a customary right. That this was so is apparent from the directions given by their Lordships in the concluding portion of the judgment which gave the parties liberty to mention the matter to the Court as occasion might arise thereafter. If the right was based on a fiction of lost grant, the declaration would have been an unequivocal one & would have endured for all time without any qualification. In our opinion, therefore, it cannot be said that the Judicial Committee based their declaration of a right of pasturage on the basis of a lost grant.
12. The fiction of lost grant proceeds on the theory that a grant was made, but proof whereof Is lost in obscurity. The grant is presumed from long uninterrupted user by the persons claiming the right. To raise such presumption there should be no legal bar in the way of a valid grant at the inception; necessarily there should be a capable grantor & a capable grantee. An indeterminate & fluctuating body of persons, viz., the villagers of a particular village, cannot be a capable grantee. On principle, therefore, a fluctuating body of persons, as the plffs. are in the present cases, cannot claim a right of pasturage on the footing of a lost grant. This was the view taken by Mukherjea, J. in the case of 'Asrabulla v. Kiamatulla', 41 C. W. N. 503. We do not see any force in the contention of Mr. Sarkar that Mukberjea, J. misapplied the decision of the Judicial Committee in the case of 'Bhola Nath v. Midnapore Zamindary, Co', 31 Cal 503. On the other hand, the view taken by Mukherjea, J. is fully supported by the decision of this Court in the case of 'Chuni Lall v. Ramkishen', 15 Cal. 460 (FB). At p. 464 Wilson, J. delivering the opinion of the F. B. dealt with the three classes of rights which may be in controversy; (i) private rights belonging to certain classes, of persons which generally originate in prescription or grant; (ii) rights belonging to certain classes of persons, or certain portions of the public, such as the tenants of a minor, which commonly originate in custom; and (iii) public rights in the full sense of the term which have their source ordinarily in dedication. The view taken by Mukherjea, J. has been followed by this Court in the cases of 'Abdul Hosain v. Sadai Gobinda Deb', 42 C W N 1102, & 'Jamila Khatun v. Kshetra Mohan', 51 C W N 179. The decision in the case of 'Syed Ali v. Sarjan Ali', 18 C W N 735, on which Mr. Sarkar placed reliance, does not militate against this view; rather the view taken by the learned Judges in this case supports the view taken by Mukherjea, J. in the case of 'Asrabulla v. Kiamatulla', 41 C W N 503. In the case of 'Syed Ali v. Sarjan Ali', 18 OWN 735, their Lordships observed that the right of pasturage could be held to arise from immemorial user resembling a right based on custom.
13. The position, therefore, is well settled that a fluctuating body of persons can claim a right of pasturage not on the basis of a lost grant but as a customary right. Such a right, as we have already pointed out, cannot be claimed either as prescriptive easements or as easement of necessity or on a fiction of lost grant. It is, however, to be observed that a right of pasturage based on custom being in derogation of the general law, has to be strictly construed, 'Rogers v. Brenton', (1847) 10 Q. B. 26. The essentials of a valid custom, as was pointed out in the case of 'Mahamaya Debi v. Hari-das Haldar', 42 Cal 455, are (i) that the custom must be ancient, (ii) invariable & certain, (iii) continuous, (iv) peaceably & openly enjoyed, & (v) reasonable.
14. The lower appellate Court has found that the right was enjoyed for a long series of years. It is well settled that in this country it is not Jnecessary to prove that the user ran back to a time beyond human memory. The true rule is that on proof of long user antiquity is inferred: 'Mt. Subhani v. Nawab', 68 I. A. 1. The first condition must, therefore, be deemed to have been satis-fled.
15. The second condition of certainty & invarl-ableness as also the third condition of continuous user must be taken to be satisfied even though in one particular case the villagers did not object to the owner of a tank throwing earth on the banks thereof & thus interfering with the right of pasturage. The right that is claimed in this case is a right of pasturage only in regard to the two tanks in suit. The right was, on the finding of the Courts below, openly & peaceably enjoyed for a long time. The fourth condition was therefore fulfilled.
16. Mr. Mukherjee, appearing for the respondents, suggested that the right may have been founded on permission. In the first place the defts. never pleaded a case of permissive user in the written statement. In the second place, as was pointed out in the case of 'Baba Narayan v. Saboosa', 47 C W N 923, it is not conclusive against a claim of a customary right that the practice began by a permission or by a grant.
17. The only other condition which has got to be fulfilled is one of reasonableness. It was argued on behalf of the respondents that the custom cannot be said to be reasonable inasmuch as the exercise of the customary right would prevent the owner of the banks of the tanks from enjoying the rights of ownership just as they please. The question of reasonableness of a custom is a question of law, 'Bastard v. Smith (1837) 2 Moo & R. 129 at p. 135, & 'Asrabulla v. Kiamatulla', 41 C W N 503. The period for ascertaining whether a cus-torn is reasonable or not is the date of its incep-tion, 'Tanistry Case (1608) Dav. Ir. 28 at p. 32.1 The reason for the existence of the custom is not to be understood as meaning every unlearned; man's reason but artificial & legal reason warranted by the authority of law 'Co. Lit. 62 a.' It is true, as was pointed out by Willes, C. J., in 'Broadbent v. Wilks', (1742) Willes 360 at p. 363, that a custom is unreasonable if it deprives the tenant of the 'whole' profits of the land. This principle is not peculiar to any country or any particular state of society, but is in conformity with the dictates of natural justice & has been applied in this country as well: 'Lutchmeeput Singh v. Sadaulla Nushyo', 9 Cal 698: & 'Kunja Paria v. Nitya Nanda', 53 C W N 346.
18. In the present case, the exercise of the right of pasturage does not entirely deprive the owner of the right to use the servient heritage. Destruction of the property need not be physical. It will suffice if the exercise of the right completely takes away the right of the owner ('Shea Raj v. Mudeer Khan', 57 All 166. Judged by the test referred to above, it cannot be said that the exercise of the right of pasturage in the present case should be regarded as unreasonable.
19. Mr. Sarkar has drawn our attention to the text of Manu, Chap. VIII, Verse 237 & Yajinabalak, Byebahara Adhaya, Sloke 166. These rules contain imperative behests for reserving reasonable quantities of pasture land in a village. In . his Tagore Law Lecture 1st Edn. Mr. Sarada Charan Mitter in Chap. XII at pp. 404 & 405 observed that pasture lands are of the utmost importance & a, custom as to the use by the community of such pasture lands is reasonable & there is nothing uncertain about it. In our opinion, the right of pasturage claimed fulfils all the requirements of a valid custom & is sustainable in law. The Courts below were, therefore, not right in refusing the plffs'. prayer for declaration of a right of pasturage as claimed.
20. Mr. Sarkar placed reliance on the use of the words 'Amul Mamul' in Ex. 1, a lease in favour of the defts. & contended that this expression preserved the right of pasturage & made it enforceable against the defts. In our opinion, this contention is not of any substance. The wordsr 'Amul Mamul' were not used 41th reference to the preservation of the customary right & to make it binding so far as the defts. are concerned.
21. Mr. Sarkar also contended that his clients may be given the liberty to amend the plaint so as to raise a case of prescriptive right of pasturage so far as the plffs. & their predecessors are concerned. In our opinion, this amendment should not be allowed at this late stage. The grant of a prayer like this would involve a remand of the case for further hearing. It may be pointed out that the evidence which supports a prescriptive right is different from the evidence which supports a customary right: 'Blewett v. Tregonning', (1835) 3 A & E 554 & 'Gopal Krishna v. Abdul Samad', 34 C. L. J. 319. This proceeds on the principle that prescriptive right differs from a customary right, inasmuch as the former involves the creation of a right, while the latter implied the creation of a rule of law.
22. It only remains now for us to consider the right of burial which was claimed in Second Appeal No. 1571 of 1943. For reasons, we have already given, Mr. Sarkar's contention that the right of burial can be claimed as easement of necessity must be negatived. The nature of a right to bury the dead or to cremate the same in another person's land has been subject of judicial decisions in this country & abroad. The right of burial was asserted in the case of 'Woolridge v. Smith' (1912) 243 Missouri 190', where a Full Bench of the Supreme Court of Missouri negatived a prescriptive claim to bury the dead. So far as Indian Courts are concerned, the right to bury the dead was negatived as prescriptive right in the case of 'Gopal Krishna v. Abdul Samad', 34 C L J 319. Mukherji, j. observed that such a right to bury the dead in another person's lands would not be an easement not being attached to a dominant heritage It was further stated that such a prescriptive right would involve the creation of a novel easement which the law does not permit. The right to bury the dead as a prescriptive right was also negatived in the case of 'Mangat Ram v. Siraj ul-Hasan', A I R (11) 1924 Lah 492. In the case of 'Sheo Raj v. Mudeer Khan, 57 All 166 Mukherji, J. negatived a prescriptive claim to a right of burial on the ground that the right claimed did not attach to any land. His Lordship, further observed that the right to bury the dead carries with it the right to see that the land under which the body is interred is kept sacred & is not trampled upon, or subjected to sacrilege & this involves a total destruction of the servient tenament. His Lordship, however, held that the right could be acquired on a fiction of lost grant or dedication. Bulaiman, C. J., who concurred in the conclusions of Mukherji, j., commented on the view taken by this Court in the case of 'Gopal Krishna Sil v. Abdul Samad', 34 C L J 319. The learned Chief Justice observed that the rule that a prescriptive right would be bad as creating a new species of easement, is not a universal rule. His Lordship added that the rule may vary according to the local conditions; for example a right of cutting wood in Gharwal, or a right of affixing cowdung cakes, or a right of privacy. The learned Chief Justice, however, concurred in holding that the right could be claimed as a customary right. In the case of 'Jogesh Chandra v. Niranjan', 39 C W N 387. Guha, J., with whom Bartley, J., agreed, was inclined to the view that the right to bury the dead & the right to cremate the dead are analogous rights & neither of them can be acquired as a prescriptive easement. It was, however, observed that the right can be acquired by dedication, or by prescription as a mode of acquisition or extinction of substantive rights by a certain lapse of time. In the case of 'Jamila Khatun v. Kshetra Mohan', 51 C W N 179. Chak-ravati, J., held that the right claimed by the residents of a village could be based on a custom, provided it is reasonable, certain, continuous & ancient. In the case of 'Mohidin v. Shivlingappa', 23 Bom 666, a right of burial limited to a number of persons & to a denned space, was held to be reasonable. So far as the public at large is concerned, the right of cremation has been sustained on the ground of dedication in the case of Chairman of the 'Howrah Municipality v. Kbetra Kristo', 33 Cal 1290.
23. The conclusion, therefore, follows that the plffs. who are the residents of a village cannot in law acquire the right of burial either as easement by prescription or otherwise, or on a fiction of a lost grant. The plffs. cannot also claim on the basis of acquisition prescription as this case was never made. The claim on the basis Of a customary right is unsustainable, because the finding of the Courts below is that the tank in question is used for the purposes of irrigation & for bathing & drinking purposes & as such, the exercise of the right would interfere with the health of the locality & cannot be regarded as reasonable. The Courts below were, therefore, right in refusing the plffs'. prayer for declaration of a right of burial.
24. The result, therefore, is that these appeals succeed in part, the judgments & decrees of the Courts below are modified. The right of pasturage claimed on the banks of the two tanks in suit is declared, subject to the qualification that the decree is not to prevent the defts. or their successors-in-interest from exercising their right on the disputed banks of the tanks so long as sufficient pasturage is left for the plffs. & the persons entitled to the right of pasturage claimed, with liberty to the parties from time to time, in case of difference, to apply to the trial Court, as they may be advised. The defts. are permanently restrained from interfering with the exercise by the plffs. of the right of pasturage as described above. The plff.' right of burial is disallowed.
25. As the plffs'. appeals have succeeded in part, they would get half the costs of the appeals in this Court. As the plffs. rested their claim on various untenable grounds in the Courts below, the parties will bear their own costs in the Courts below.
26. I agree.