1. This appeal is directed against an order of remand made in a suit for the establishment of a prescriptive right to bury the dead in the disputed land, for a permanent injunction to restrain interference with such right and for incidental reliefs. The subject-matter of the litigation is a hillock which was included in the Reserve Forest of the Government up till 1907. In that year the defendant obtained a settlement from the Government and has since then been in possession. The plaintiff, who are Moslem residents of the adjoining village of Talberia, allege that the Moslems of the locality have in the past buried the dead in the disputed tract, but were resisted by the defendant on the 26th October 1914. They assert that, from time immemorial and for more than a century, the hillock has been used as a burial ground, openly, continuously, without interruption and as of right, and that they have thereby acquired prescriptive right therein. They accordingly instituted this suit on the 1st November 1916 for the establishment and enforcement of the alleged prescriptive right. The defendant repudiated the claim as neither founded on fact nor sustainable in law. On these pleadings, twelve issues were raised. It is sufficient to refer to the eighth issue, which was framed in the following terms: 'Is there any public or private casement?' The Subordinate Judge answered the question in the negative. He held that the evidence did not establish that the plaintiffs or the other villagers of Talberia had ever buried their dead in the hillock before 1911 and that the plaintiffs could not claim a right to use the land as a graveyard by prescription. In this view the Subordinate Judge dismissed the suit, Upon appeal it was argued before the District Judge that what the plaintiffs claimed was not a prescriptive right, but a customary right, The District Judge thereupon framed the following new issue and remanded the suit for re-trial: 'Have the plaintiffs acquired a customary right to bury their dead in the suit land? If so, is this right valid to the extent that defendant must be restrained by a perpetual injunction from interfering with that right? And is that customary right to be held as existing over the whole of the suit land P If not, to which part of the suit land, if any, is that customary right to be held to exist?' The defendant has appealed against the order of remand.
2. No authority has been poduced in support of the claim put forward in the plaint, namely, that the plaintiffs had acquired a prescriptive right to use the disputed land as a burial ground by reason of the interment of dead bodies therein for more than a century openly, continuously, without interruption and as of right. Such a prescriptive right was asserted in the case of Wooldridge v. Smith (1912) 243 Missouri 190 : 40 L. R. A. (N. S.) 762. but was negatived by a Full Bench of the Missouri Supreme Court. Land for use as a burial ground may be acquired through purchase or dedication. But law does not recognise that an easement by prescription can be created by the mere fact that dead bodies are placed in graves on the land of another and permitted to remain there for the prescriptive term. The Indian Basements Act contains the following definition of an easement: 'An easement is 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. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.' By no stretch of language can the right to bury in a given tract of land be deemed a right imposed for the beneficial enjoyment of land. In such a case, there is no such thing as a dominant heritage to which the easement right can attach and the right to bury upon a tract of land in no sense falls within the general definition of the term 'easement.' It may be conceded that, where the owner of land has acquiesced in the burial of dead bodies on his property, apart from all questions of acquisition of title by adverse possession, a Court of justice may prevent the desecration of the graves, But this does not justify the inference that the placing of dead bodies in graves upon the land of another creates an easement by prescription. Sach an easement is unknown to law and it is well settled that the Court will not create a new species of easement especially if the easement claimed constitutes a nuisance: Hira Lal v. Lokenath 29 Ind. Cas. 865 : 19 C. W. N. 834. In view of these diffculties, the plaintiffs set up a customary right to bury the dead on the disputed tract; they may have been encouraged to put forward such a claim at the appellate stage by reason of the decision in Mohidin v. Shivlingappa 23 B. 666 : 1 Bom, L. R. 170 : 12 Ind, Dec. (N. S.) 445. That case is an authority for the proposition that, where a certain section of the Moslem community bad been for many years in the habit of burying their dead near a Darga on the land of the plaintiff who sued for an injunction to restrain them in future, the right of burial claimed by the defendants was not an easement bat a customary right which, being confined to a limited class of persons and a limited are* of land, was sufficiently certain and reasonable to be recognised as a valid local custom. Wo do not desire to express an opinion upon the view adopted in the case just mentioned. The question, when it arises, may require careful consideration, whether a customary right of user of a place as a burial ground or a cremation ground may be acquired especially as against the Crown. Before such a custom can be recognised, it will be necessary to investigate whether it possesses what has been considered as the essential attributes of a custom, namely, that it must be immemorial, it mast be reasonable, it mast have continued without interruption since its immemorial origin, and it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect; Mahamaya Debi v. Haridas Haldar 27 Ind. Cas. 400 : 42 C. 453 : 19 C. W. N. 268 : 20. C. L. J. 133. But it is indispensable that when a customary right is claimed, it should be specifically pleaded; all the essential requisites to its validity and binding effect must be averred and the custom be pleaded must when put in issue be proved as laid. When a plaintiff sets up a prescriptive right he cannot in fairness to the defendant be allowed to succeed on the basis of a customary right. The two are fundamentally distinct, for, as has been well said, custom differs from prescription in the fast that prescription is the making of a right while custom is the making of a law. The District Judge in this case has framed a now issue, apparently under Order XLI, Rule 25, but this should not have been done as the new issue framed did not arise upon the pleadings. In this connection, reference may be made to the decision of the Judicial Committee in Haw Chandra Bhanj Deo v. Secretary of State for India 37 Ind. Cas. 223 : 43 I. A. 172 : 43 C. 1104 : 24 C. L. J. 296 : 20 M. L. T. 235 : 20 C. W. N. 1245; (1916) 2 M. W. N. 175 : 4 L. W. 251 : 14 A. L. J. 1009 : 18 Bom, L. R, 838 : 31 M. L. J. 745 (P.C.). where Lord Parker observed that, even if an Appellate Court be deemed competent to remit a case for re-hearing on an issue not raised in the pleadings nor even suggested in the Trial Court, this ought only to be done in exceptional cases, for good cause shown, and on payment of all costs thrown away. In the present case, the respondents showed no ground whatever for the indulgence they claimed and obtained in the lower Appellate Court; they did not suggest that ,they had been in any way taken by surprise or had discovered fresh facts of which they were unaware when the case was tried before the primary Court. They came into Court on a specific allegation of prescriptive right of a novel character. That case was completely met by the defendant and the Subordinate Judge came to the conclusion that the evidence of prescriptive user was in a large measure unreliable, When they went on appeal, they realised that the decision of the Trial Court was unimpeachable both on the facts and the law, and accordingly set no a new case of customary right. If this case is entertained, the plaint must be amended and the defendant permitted to file a new written statement. The new case would then have to be tried on fresh evidence. This is a procedure which cannot be seriously defended.
3. The result is, that this appeal is allowed, the order of the District Judge set aside and the decree of the Court of instance restored with costs throughout.