RAM RAN BIJAYA PRASAD SINGH Vs. ABDUL GHANI KHAN

JUDGEMENT

(1.) This is an appeal by the defendant in a representative suit brought under Order 1, Rule 8, Civil P.C., by the plain, tiffs on behalf of all the Mahomedans of Bhojpur Jadeed. The defendant-appellant is the proprietor of the village and the dispute not bearing survey No. 1303 in khata 322 with an area of 7.56 acres stands in the Becord of Bights entered as parti kadim gair mazrua malik with trees on it similarly entered. The claim of the plain, tiffs was that the plot belonged to them as a Mahomedan graveyard and they prayed to recover exclusive possession of the entire plot by dispossessing the defendant. Alternatively the plaintiffs asked for a declaration of their right by custom or easement to bury their dead in this plot. The Munsif held that the survey entry was correct and the plaintiffs had no right either to the trees or the land; that a market or bazar had been held on the suit land from time immemorial; that there were a few graves, but that the plaintiffs had not adduced instances sufficient to establish any customary right of burying the dead. On these findings he dismissed the whole suit with costs. The Subordinate Judge who heard the appeal has stated the point for decision before him in these terms: Whether the plaintiffs have acquired any right by onstom to bury the dead in the disputed plot 1303 or any portion thereof. He does not directly state as a point for decision the claim of the plaintiffs to possess the entire plot as a graveyard to the exclusion of the proprietor's right to use it for other purposes; but in his judgment he does not accept the contention which was argued before him that the Becord of Bights was incorreot and that the plot was kabristan. He agreed with the finding of the Munsif that the defendant was still using and from time immemorial had used, a part of the suit land for holding a market. He accepted the evidenoe that there were pucca graves at three or four places in the disputed plot and that in the immediate vicinity of each of those pucca graves burials had been made for many years past till now. He found that. the user of a portion of the disputed plot by the Musalmans as a graveyard was ancient, exclusive and oontinuous and that with the owner's knowledge, and concluded that "the plaintiffs have acquired a customary right to bury the dead in a portion of the disputed plot," namely, the area "in and about the graves already existing and as near them as pos. sible." As a result he has given them a declaration of that right. Against this decision the defendant has appealed and the plaintiffs have preferred a cross-objection.

(2.) The main points taken in the appeal of the defendant are that no such customary right can in law be acquired in land owned by another; that the facts found do not warrant in law a finding of the existence of such a custom, and that the judgment and decree are vague and incapable of execution for want of a finding as to the situation and dimensions of the portion of the disputed land over which the plaintiffs had established their rights. The lower Court's view that a customary right to bury the dead may exist appears to be supported by Mohidin v. shivlingappa (1899) 23 Bom. 666; but the correctness of that decision seems to be doubted by Mookerjee J. Gopal Kroshna V/s. Abdul Samad A.I.R (1921) . Cal. 569. But it is not necessary here to decide whether as an abstract proposition of law such a customary right can be acquired in another's land; for assuming the law to be as stated in the Bombay decision we are of opinion that the appeal must succeed on the second of the grounds above stated. The learned Judges of the Bombay High Court accepted it as a correct statement of the law that a Court should not decide that a local custom, such as that set up in this case, exists unless the Court is satisfied of its reasonableness and its oertaiDty as to extent and application.

(3.) Now in the present case on the Subordinate Judge's own finding the supposed custom seems lacking in certainty as to extent. All that he finds is that the customary right of burial exists over a portion of the disputed plot. He is unable to ascertain the limits of that portion. He arbitrarily defines the limits as being "in and about the graves already existing". But he loses sight of the fact that within a big plot of 7.56 acres these graves lie in scattered places and not in one continuous block. He proceeded to fix the limits relying on the case in Mohidin v. Shivlingappa (1899) 23 Bom. 666. There however the finding of the Courts below was that the right of burial existed "round about the darga in the land in dispute." It was on the basis of that finding that the High Court limited ithe right to "burying near the darga." This decision does not justify the course adopted by the learned Subordinate Judge in the present case. On the facts as found by him the extent of land over which the [Supposed customary right exists is uncertain. That being so, the custom is not established.