RANGLAL Vs. LAHSHMIDHAR MISRA

JUDGEMENT

(1.) This appeal arises out of a suit, the subject-matter of which is 4.15 acres of land situated in Byree, a village in the Jajpur subdivision on the main railway line. The railway station at Byree is in the immediate vicinity of the land in suit, which is part of a larger area of 7.82 acres, which, in the record of rights, is recorded as a smasan or burning ground. The proprietors of Byree is the Darpan estate, and, in 1936, the estate leased out the land in suit to one Baluram for the purpose of constructing a rice mill on it. Before granting the lease, the manager of the estate intimated to the Collector of Cuttack that the estate was prepared to set aside other land for use as a burning ground. The Collector caused a local enquiry to be made, and was satisfied that no hardship would be caused to the villagers of Byree by the exchange, and sanctioned the lease. Sometime previously, another rice mill had been constructed in Byree, and, curiously enough, the owners of that mill had also obtained a lease of a portion, but a much smaller portion, of this burning ground. One of the plaintiffs in the suit had an interest in this other mill; the other two plaintiffs were Hindu residents of Byree. The plaintiffs asked for a declaration that the land in suit belonged to the public of Byree, and it was not open to the landlord to lease any portion of it out. They also asked for an injunction to restrain the defendants from building on the land. The suit was dismissed by the learned Munsif of Jajpur, but, on appeal, was decreed by the learned Subordinate Judge. During the pendency of the suit, the defendants had completed the construction of their mill, and the learned Subordinate Judge made an order, directing that the buildings, which they had constructed, should be demolished.

(2.) At the trial, the plaintiffs adduced evidence to show that the dead body of one Binod Naik had been buried in the land in suit in 1934 or 1935. Evidence was, also, led to show that, in Byree, there are Bauris, Sabars and Kandaras, who bury their dead, and that the dead bodies of . persons belonging to these communities were, also, buried in the land in suit. The learned Subordinate Judge proceeded on the assumption that the land in suit was not merely a burning ground, but was, also, a burial ground, and, in granting the plaintiffs the reliefs for which they asked, relied on a number of decisions relating to Mahomedan grave-yards. In doing so, the learned Subordinate Judge, in my opinion, very seriously misdirected himself. In the first place, it is quite clear that, although the dead body of Binod Naik and other dead bodies may have been buried in the land in suit, it is not a burial ground in the sense in which a Christian cemetery or a Mahomedan grave- yard is. No portion of it is apparently . marked off for use as a burial ground by those communities, which are in the habit of burying and not burning their dead. The ground, in which such dead bodies are interred, is not consecrated ground,, as is a Christian cemetery, nor are the relations of the persons buried there in the habit of performing religious ceremonies at their graves, as Mahornedans are in the habit of doing. Secondly, the plaint did not contain anything to suggest that the land in suit was a burial ground as well as a burning ground. The plaintiffs based their case wholly on the circumstance that the land in suit was a burning ground and had been used as such for a very long time. It was, therefore, not open to the plaintiffs to contend, at the trial, that the land in suit was, also, a grave-yard, and that, on that ground, they were entitled to the injunction, for which they asked. In Chairman of the Howrah Municipality V/s. Khetra Krishna Mitra (06) 33 Cal. 1290 Asutosh Mookerjee J., relying on certain decisions of the American Courts, held that the proprietor of land might dedicate the user of it to the Hindu public of the neighbourhood for use as a burning ground. That learned Judge there observed: An implied dedication arises by operation of law from the acts of the owner and is really founded upon the principle of estoppel; it proceeds not upon the principle that a grant has actually been made, but rather on the principle that the owner having allowed the public to enjoy the user for any particular purpose, is estopped from denying the right of the public to the enjoyment of such user.

(3.) The conclusion, to which the learned Subordinate Judge came was that, at least since 1891, and possibly, from an earlier date, the villagers of Byree" had been in the habit of burning dead bodies on the land in suit. He conceded that, since the construction of the railway station at Byree, dead bodies had also been burnt elsewhere; but he was satisfied, on the evidence, that dead bodies still continued to be burnt at times on this land. Mr. M. S. Eao, for the respondents, has drawn my attention to an observation of Sulaiman C. J. in Sheo Raj V/s. Mudeer Khan . That learned Chief Justice there observed: If a place has been used as a graveyard or a burning ghat for a sufficiently long time, there should be a presumption that it is dedicated property, and the grant is irrevocable.