1. This was a suit for a declaration that the plaintiff was entitled to' kill bullocks and cows, and for a perpetual injunction against the defendants, restraining them from interfering with that right. The suit has been decreed against the 1st defendant and the 1st defendant appeals.
2. Several points have been taken on behalf of the appellant, but they have all been so exhaustively discussed in the excellent judgment of the learned District Judge that it is unnecessary to deal with them at great length.
3. The first point taken is that the plaint discloses no cause of action. It appears to me, reading the plaint as a whole, as I am bound to read it, that the plaint certainly discloses a cause of action. The plaintiff states in paragraphs 8 and 9 of the plaint that defendant No. I sent a telegram to the Sub-Divisional Officer of Sitamarhi and that the Sub-Divisional Officer issued a notice under Section 144 of the Criminal Procedure Code, forbidding the plaintiff to kill cattle. It has been faintly suggested that there is no evidence that defendant No. 1 sent this telegram. On this point, the finding of fact of the Courts below is conclusive and it is, moreover, evidently right. The defendant No. 1 does not categorically deny sending this telegram. He says that he does not remember it. It is a perfectly safe inference that, if he had not sent the telegram, his memory would have been clear on the point.
4. Next, it is argued that the Magistrate did not take any action on this telegram. Apparently, he had already issued notices tinder Section 144 of the Criminal Procedure Code before the receipt of this telegram. The telegram informed the Magistrate that the appellant's manager had been directed to see him and asked the Magistrate to take him under his orders and avert cow sacrifices. The order of the Magistrate of the 10th January mentions the receipt of this telegram and directs the issue of notices. The order of the 12th January mentions an interview of the Magistrate with the appellant's manager in accordance with this telegram and makes the orders in the notices absolute. It is perfectly clear, therefore, and this is really the substance of the plaint, that the plaintiff was prevented from exercising his right to kill his own cattle by the order of the Magistrate and that that order was passed, at any rate in part, at the instance of the appellant. It is argued that it was. the appellant's duty to inform the Magistrate of the probability of a breach of the peace, and several cases have boon cited to show that such an action involves no civil liability. Almost all these cases, however, are decisions in suits for damages for wrong done, and there is no real analogy between such a suit and a suit for declaration of a right against persons who deny that right, in which no compensation is sought. In such cases, the denial may clearly be perfectly honest and may be made in perfectly good faith. But that would not affect the right of the person whose right was denied. I think, therefore, it is not necessary to discuss the decisions that a person who has set the law in motion in good faith is not liable for damages, as such cases are not, in my opinion, really relevant. The case of Madhub Chunder Gooho v. Kumla Kant Chuckerbutty 15 W.R. 293 : 6 B.L.R. 643 was a case in which it was held that the plaintiff had no right to sue even for a declaration. That, however, was a case of quite a different nature. The plaintiff had built a bridge over a Khal, which Was removed by the Magistrate, as it was an obstruction to navigation. Clearly he was not entitled to sue for a declaration of his right to build a bridge which was an obstruction to navigation, while his right to build a bridge, which was not such an obstruction, had never been disputed or interfered with. That case therefore, in my opinion, has no application. The contention that the plaintiff has no cause of action wears an air of unreality, to my mind, in a case of this kind, in which hundreds of witnesses have been examined, and the case has been hotly contested up to this Court, in order that the right claimed may be negatived. The 1st defendant, in my opinion, has all along denied and has all along been interested to deny the plaintiff's right within the meaning of Section 42 of the Specific Relief Act, 1877. I hold, therefore, that the plaintiff has certainly a cause of action.
5. The next point taken is that the decree itself is too vague and indefinite. The form of the decree is evidently founded on the decision in Shahbaz Khan v. Umrao Puri 30 A. 181 : A.W.N. (1908) 64 : 5 A.L.J. 147 : 7 Cr. L.J. 381 and if it is not as specific and definite as might be desired, that seems to be a matter of which the plaintiff alone may reasonably complain and not the defendant. The words, however, in the decree, 'And on any land belonging to him in Barharwa' seem to go beyond the reliefs sought in the plaint and should, in my opinion, be expunged.
6. Thirdly, it is argued that the suit must fail because numerous other persons besides the plaintiff are interested in the establishment of the right. I cannot accept this contention. The right of the plaintiff to kill his own cattle is an individual right of his own and he is entitled to sue for a declaration of it, whether other persons who have similar rights join him or not. Indeed, it is a right which can by no means be confined to Muhammadans. Even Hindus, in the absence of any binding custom, may be regarded as having a legal right to kill their,!? own cattle, however irreligious such an action may be. The plaintiff could sue, therefore, as an individual and not necessarily as a Muhammadan. It is certainly not necessary that he should join every one who may have this right as well as himself.
7. Next, it is argued that the District Judge's decision on the question of custom is wrong. It is said that a custom takes its rise from voluntary forbearance and that when the Judge holds that the mere fact that the Muhammadans did not kill kine in any of the villages could not deprive them of their right to do so, he overlooks the fact that the restriction may have been accepted by the Musalmans and in that case this mutual forbearance may have ripened into a binding custom. Reference is made to certain passages of his judgment on this point. In one place, he says that ''the evidence that cows have not in fact been killed in any of these villages, if it stood by itself would not be sufficient to prove the existence of a custom prohibiting the killing of cattle. It would be consistent with the existence of a right to kill cattle, and would only show that the right had not been exercised. Mere non-exercise will not defeat a right.' Later on, he remarks that '' if consideration in the matter of rearing swine is given in return for the abstention of the Muhammadans from killing cattle, then the fact is decidedly against the existence of the custom as showing that the abstention from killing kine is due not to a custom having the force of law but to natural and revocable agreement.'' Another observation is that '' If the right to prohibit cow-killing rests on contract, this fact is also inconsistent with the existence of a general prohibitory custom.' This question of custom has, however, been discussed by the* learned District Judge at considerable length and his judgment must be taken as a whole and should not be dealt with on the strength of two or three isolated passages. Reading it as a whole it is quite clear that the learned District Judge fully understood the essentials of a valid custom. He refers specifically to the decision in Prodyote Kumar Tagore v. Rakhal Chandra Sarkar 5 Ind. Cas. 243 : 11 C.L.J. 209 : 14 C.W.N. 487 in which the whole matter is fully discussed, and to several other cases. But it is clear that in his opinion the evidence which has been given is not sufficient to prove the existence of a valid and binding custom. For instance, he points out that many of the plaintiff's witnesses in cross-examinations made admissions favourable to the defendants on the question of a custom, but holds that these statements must not be taken as meaning more than that circumstances and practice had introduced among Muhammadans ascertain amount of abstention from the practice of cattle-killing.' He then refers to certain conversations which are said to have taken place and says: 'if the practice is fixed and certain these conversations are unnatural. If it is irregular and uncertain, then they are natural.' Clearly, therefore, he thinks'* that this evidence proves that Muhammadans did partly, but not entirely, abstain from the practice of cattle-killing and that this practice of abstention was irregular and uncertain. After summing up the evidence on this point, he says: the truth appears to be that cattle-killing has not in fact been practised as constantly and openly as it probably would be in the case of a purely Mohamaden village population, but has been practised on occasions sufficiently frequent, though comparatively rare, and in many cases with precautions for secrecy, out of consideration for the feelings of the Malik and the Hindus.' Later on, the Judge observes: The custom put forward has not been shown to be either universal or certain, and the attempt to prove it has failed.' These appear to me to be findings of fact, with which we cannot interfere in second appeal. Reference has been made to the case of Kakarla Abbayya v. Raja Venkata Papayya Rao 29 M. 24 : 16 M.L.J. 8. But I do not understand that the learned Pleader for the appellant desires us to go so far as that decision, in which it was laid down that when the question of a custom arises, the evidence for, and against it, is to be Weighed in second appeal. Indeed, it would not be possible for us to weigh the evidence in this case, which consists of the depositions of 450 witnesses, besides a number of documents, inasmuch as this evidence has not been placed before us.
8. Nor do I think that the fact that cattle were killed with precautions for secrecy conclusively proves the existence of a custom that cattle cannot be killed. This is evidence in favour of the plaintiff and has to be weighed as evidence. The learned District Judge has weighed it, and, in my opinion, we cannot in second appeal interfere with his decision upon it.
9. Next, it is said that the learned District Judge has overlooked that a decree under Section 42 of the Specific Relief Act is a matter of discretion. This contention also seems to me to be quite unsustainable. On the findings of fact arrived at by the learned District Judge, he was bound, in my opinion, to give the declaration which the plaintiff sought.
10. Next, it has been argued that the learned District Judge erred in referring to the fact that the existence of this custom was neither mentioned in the Record of Rights nor in the Gazetteer. I am not, by any means, Satisfied that the fact that this custom was not mentioned is not admissible in evidence under Section 11 of the Evidence Act. But it is not necessary to deal with this point, because it is clear that this was a point of quite minor importance and that the admission of these two documents could not have made any real difference to the Judge's decision.
11. Finally, it is contended that the lower Court had no jurisdiction to issue a temporary injunction, inasmuch as that remedy could only he granted in personam and not against the first defendant who did not reside within the jurisdiction of the Court. Section 20 of the Civil Procedure Code, however, authorises the institution of a suit, subject to the limitations in the preceding section, in any Court within the local limits of whose jurisdiction the cause of action wholly or in part arises, and thus it is clear that a suit for a permanent injunction, such as the present suit, could have been instituted where the plaintiff's rights were interfered with.
12. I would, therefore, expunge from the decree of the lower Appellate Court the words, 'And on any land belonging to him in Barharwa.' But with this trifling exception, I would affirm the decision of the Court below with costs.
13. I agree.