Salil Kumar Datta, J.
1. This is an appeal by the defendants against a judgment of reversal decreeing the plaintiffs' suit. The suit land is comprised in plot No, 1876 (tank) area 2.04 acres khatian 199 and plot No. 1875 (banks of the said tank) area .86 acre khatian 146 Mouja Gopigram P.S. Nabagram, District Murshidabad. The plaintiff's case is that he purchased the suit lands from pro forma defendant No. 12 on August 29, 1952 and had been in possession of the tank by rearing fish and its banks by growing trees and crops. There were ill feelings between the plaintiff and the said defendant and the principal defendants who were his labourers, on December 20, 1955, cut down trees on the eastern bank of the tank and started digging earth with the object of burying the wife of the defendant No. 1 at the instigation of the defendant No. 12. The plaintiff strenuously objected but to no effect. He started a criminal case but it failed and even during its pendency the defendants buried another person there. The plaintiff averred that the defendants never, buried their dead before and there was a grave yard in near about plots Nos. 1901 and 1902. The plaintiff further stated that water of the tank by such burials was being polluted, as the tank water was used for drinking and bathing. In these circumsances the plaintiff instituted the suit praying for declaration of his title to the above plots and for further declaration that the defendants had never any right to bury their dead on the eastern bank of the tank, for permanent Injunction restraining them from using the said land as the burial ground and also for permanent injunction removing the graves of the persons buried by them. The defendants Nos. 1 to 11 were impleaded for selves and on behalf of the Muslims of Gopigram,
2. The suit was contested by the defendants (excepting defendant No. 1) and in their written statement it was stated that the disputed land, the eastern portion of the tank, was used as the burial ground of Muslims of Shaikpara and Gopigram from time immemorial. All material allegations in the plaint were denied, in particular, about the water of the said tank being used for drinking purposes and its pollution and the alleged cultivation of the banks or the rearing of fish in the tank. It was further claimed that the easement right had been acquired by long over twenty years' user and the same could not be destroyed. Another written statement was filed by the pro forma defendant No. 12 supporting the case of the principal defendants. The suit in the circumstances, it was submitted, should be dismissed.
3. The suit was tried on evidence before the learned Munsif, who on the materials on record, held that the customary right of burial of the dead as pleaded in the argument, though in the written statement the case was one of acquisition of the right of easement, was established to have existed for a long time. Such right was also held to be reasonable and the topography of the land sloping towards the road by the other side also supported the defendant's case. The title of the plaintiff in the suit plots was not disputed. The suit was accordingly decreed in respect of the declaration of title of the plaintiff to the suit plots, subject to the right of Shaikpara Muslims to bury their dead on the eastern bank of the tank.
4. An appeal was preferred by the plaintiff against the said decision and the appellate court came to the finding that the customary right as being based on immemorial user was not established as twenty-five years' use, at the highest, could not be said to be ancient and antique. In the C.S. record of rights published in 1928, the concerned plot No. 1875 was not recorded as graveyard like plots Nos. 1901 and 1902 which were so recorded. Further the alleged customary right of burial on all banks of the tank or even on the eastern part thereof could not be said to be reasonable. Upon the above findings, the appeal was allowed and the plaintiffs' suit was decreed as to declaration and permanent injunction restraining the defendants from using the suit plot as graveyard. The present appeal against the said decision is by the principal defendant.
5. Mr. Asoke Kumar Sengupta, the learned counsel for the appellants has contended that the appellate court proceeded on a misconception that the customary right for burial of the dead was claimed in respect of all the banks of the tank while in fact the claim was confined to the eastern bank only. The appellate court further erred in holding that twenty five years' user was not sufficient to make the right as existing from time immemorial. The appellate court further Ignored the topography of the eastern bank which was lower in level than the other bank and sloped not towards the tank but towards the road on the opposite side. Mr. P. N. Mitra, the learned counsel appearing for the plaintiff respondent disputed the above contentions and contended that the right claimed was neither reasonable nor ancient, nor there was any evidence of continuous use of the land as the burial ground,
6. The nature of such rights was restated in Lakshmidhar Misra v. Rangalal, 76 Ind App 271 (77-8) = AIR 1950 PC 56 as follows:
'... ... ... the true legal basis of such rights lies in custom. A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large... ... ... What the courts have required of a custom, if the law is to uphold it as a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use.'
In Nani Gopal Dutta v. Kshitish Chandra Banerjee, : AIR1952Cal108 , it was observed that the essentials of a valid custom, as have been held, are that the custom must be (i) ancient, (ii) invariable and certain, (iii) continuous, (iv) peaceably and openly enjoyed and (v) reasonable. It is by these tests that the defendants' claim for burial of their dead in the suit land has to be tried.
7. Mr. Mitra contended that the findings arrived at by the appellate court about the user of the land rejecting the defence case was final and binding. A finding about the user would be undoubtedly so, but, as was held in the above case, 76 Ind App 271 = (AIR 1950 PC 56) (supra), it is a question of law whether such a custom is to be recognised or not although the facts on which the question is to be decided cannot be a matter of appeal beyond the first appellate court. In Mt. Subhani v. Nawab, AIR 1941 PC 21 reiterated in Gokal Chand v. Parvin Kumari, AIR 1952 SC 231 relied on by Mr. Sengupta it was observed that in Indian conditions, the English rule that 'custom; in order that it may be legal and binding, must have been used so long that the memory of roan runneth not to the contrary' was neither apposite nor useful. It was observed at page 32,
'All that is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of the particular locality.'
In Nani Gopal's case, : AIR1952Cal108 (supra) it was held that it was not necessary to prove that user ran back to a time beyond living memory, the true rule being that on proof of long user antiquity is inferred. In Lakshmidhar's case, 76 Ind App 271 = (AIR 1950 PC 56) (supra) it was held that user for generations, entry in settlement record as smasan since a time earlier than thirty years prior to suit, absence of non-abandonment could establish existence of a customary right to which law could attach legal sanction. In Karan Singh v. Dalchand. AIR 1924 Ail 159. thirty years user, acquiesced by the zamindar was held to establish a customary easement of way while in Baba Narayan v. Saboosa. AIR 1943 PC 111, a right enjoyed for fifteen years was found to be insufficient to establish a customary right.
8. The evidence we have here of such user is by some defence witnesses. D.W. 1 stated that his father and grandfather were buried there and there are old graves, his evidence however was disbelieved by the appellate court as he was an interested party. D.W. 2(55) spoke of seeing the grave yard since dawn of his knowledge and saw Bahar being buried 25/26 years ago. D.W. 3(72) also spoke about pucca graves since dawn of his intelligence. D.W. 4 spoke of burying his father, mother, son, wife there as also his seeing other persons being buried there. In cross-examination however he said that being young he remembered nothing about the death of his parents. D.W. 5 made a general statement that the graveyard was in existence all along. He saw the writing of the plaintiff's kobala but could not say why the land was not described as graveyard. D.W. 6, plaintiffs' vendor also spoke of the existence of a graveyard and further stated that the land was not described in the kobala as grave yard at the request of the plaintiff who gave out that it should not be so stated since in the C.S. record it is not described as graveyard.
9. On the above materials. It appears to me that though there are graveyards in the land and at times people were buried there, there is no evidence of invariable, certain and continuous use of the land as the burial ground of Shaikpara Muslims. There is no evidence far less independent or satisfactory that the Muslims of the Shaikpara village in general and continuously and from ancient time, as interpreted by judicial decisions, had been using the land as the graveyard of their dead. This finds support from the C.S. record published in 1928 wherein the land was not recorded as graveyard and the villagers of Shaikpara could not be unaware of such fact. I also do not consider that the right claimed by the defendants is reasonable. There is graveyard in the nearby two plots Nos. 1901 and 1902 and there is no case or evidence that the Muslims of Shaikpara are not allowed to bury their dead in the said graveyard. As the tests laid down for such customary right have not been established, the plaintiff is entitled to the declarations granted by the appellate court.
10. In the result the appeal fails and is dismissed, there being no order for, costs in this court.