- (1.) Six plots comprised in khatian No. 1, mouza Ganga Jawara, P.S. Sonarpore, dist. 24-Parganas, are subject-matters of the present appeal. Previously, two groups of Roychowdhury landlords were in khas possession of these plots. In the C.S. records these plots were described as with further remarks On Chaitra 1, 1353 B.S, corresponding to March 15, 1947, two brothers Palan Naskar, the father of the Plaintiffs and Kartick Naskar, by executing two kabuliats had taken settlement of these plots from the said twp groups of Roychowdhury landlords. On Falgoon 9, 1358 B.S., Kartick sold his interests to said Palan Naskar. Subsequently, one group of landlords headed by Sailendra Kumar Roychowdhury had sued Kartick Naskar and Palan Naskar for arrears of rent and had obtained a decree. The decree-holder had put the said decree into execution. On June 10, 1954, one Panchanan Ghosh had auction purchased the suit property. On Bhadra 22, 1361 B.S. corresponding; to September 8. 1954, the Plaintiffs purchased the suit property from the said Panchanan Ghosh.
(2.) The Plaintiffs brought a suit, inter alia, for declaration of title and for further declaration that the entries in the record of rights in respect of the disputed plots were erroneous, for confirmation of possession and for permanent injunction. The Defendants contested the suit, inter adia, claiming that the villagers had been using the disputed plots for grazing their cattle as of right from time immemorial and that they acquired a customary right of pasturage over the suit property. The learned Munsif. First Additional Court, Alipore, dismissed the suit, inter alia, holding that the presumption of the correctness of the record of rights stood unrebutted and even assuming that the predecessors of the Plaintiffs had taken settlement, they had taken the same subject to the customary right of the members of the public. The Plaintiffs being aggrieved by the said decision preferred an appeal. The learned Additional District Judge, Fourth Court, Alipore, allowed the said Appeal in part. He ordered that the suit be decreed in part and the Plaintiffs' title to the disputed lands be declared and their possession be confirmed subject to the 'easement right of pasturage' of the villagers of Ganga Tawara from the months of Ashar to Mash every year. The Defendants were ordered to be restrained from interfering with such possession of the lands by the Plaintiffs. The Plaintiffs have preferred this Second Appeal, inter alia, contending that the lower appellate Court had erred in law in passing the above qualified decree.
(3.) Both the trial Court and the lower appellate Court have concurrently found that the villagers of Ganga Jawara had a right of pasturage by immemorial custom over the suit property. The Defendants witnesses Nos. f and 2 admitted that their cattle grazed on the suit lands from transplantation to harvesting time and these witnesses did not even claim such right of pasturage throughout the year. lire Plaintiffs as owners were entitled to exercise their tenancy rights subject to the customary right of pasturage of the villagers of Ganga Jawara enjoyed from Ashar to Magh each year. The decree passed by the lower appellate Court fully satisfy the principles of law relating to customary right to pasturage enunciated by G.N. Das and Lahiri JJ. in Nani Gopal Dutta and Ors. v. Kshitish Chandra Banerjee and Anr., 1952 AIR(Cal) 108 which was placed by Mr. Mitter, the learned Advocate for the Appellants. The Division Bench held that the villagers of a particular village can claim right of pasturage over the banks of a tank as a customary right. But such right of pasturage based on custom has to be strictly construed and all the essentials of a valid custom must be fulfilled. The exercise of the right of pasturage by the villagers over the banks of a tank does not entirely deprive the owner of the right to use his servient heritage. Such custom would be reasonable.;