P L D 1961 Dacca 849 (PLP)

5. On appeal the learned Subordinate Judge found that the evidence clearly established the jote right of the defendants as also that the plaintiffs used to graze their cattle on the cut roots of binna chans: but was of the view that this particular mode of grazing could not confer any pasturage right upon the plaintiff's. Hence, the systematic possession of the defendants having been satisfactorily proved in these lands, there was no reason to hold that the plaintiffs could acquire a pasturage right over defen dants' said lands, and hence, he too affirmed the decision of the learned Munsif and maintained the decree of dismissal of the suit.

6. It is against this decision that the plaintiffs have come up on appeal to this Court and on their behalf the decision of the Court of appeal below is assailed on mainly three grounds. Firstly, on the ground that after the Courts below had concur rently found that the user of the land by the plaintiffs for the purposes of grazing their cattle from a long time had been established upon the evidence in this case, the Courts below should have held that the right of pasturage in these lands had been established. Secondly, it is urged that the Court of appeal below. was wrong in its approach to the case; it having first taken up the case of the defendants and finding that the defendants' jote right had been established, summarily dismissed the plaintiffs' case, as if it automatically fell to the ground, without discussing the evidence in the case to see if the plaintiffs had succeeded in establishing their case. The last ground is really subsidiary to this, for in this ground the complaint is that the Court of appeal below has not applied its independent mind to the oral and documentary evidence adduced in this case and hence, at least there should be a remand of this case.

7. Now, so far as the first question is concerned, it has to be observed that before proceeding to decide as to whether the customary right of pasturage has been established or not, the nature and the exact content of this right must be clearly kept in view. This question, it appears, came up first for consideration before their Lordships of the Judicial Committee in the case of Bholanath Nandi and others v. Midnapore Zemindary Company Limited and six others (31 I A 75) and their Lordships of the Judicial Committee opined that such a right could not be claimed as an easement, for no easement could be so large as to preclude the ordinary use of property by the owners of the land affected. But nevertheless held that "on proof of the fact of enjoyment from time immemorial there could be no difficulty in the way of the Court finding a legal origin for the right claimed." It was, how ever, pointed out drat although in the case before them it had been established that the plaintiffs as cultivators by occupation belonging to nine villagers had enjoyed the right of pasturage in the suit lands from time immemorial yet the right could not be claimed as a right in gross and could not prevent the defendants from improving their property. Thus their Lordships restored the decree of the subordinate Courts with the amendment that in each case the decree was not to prevent the defendants or their successors in title from cultivating or executing improvements upon the waste lands in question so long as sufficient pasturage is left to the plaintiffs and the other persons entitled to the right of pasturage claimed with liberty to the plaintiffs from time to time in case of difference to apply to the Subordinate Judge, as they may be advised.

8. In a more recent decision however in the case of Lakshmidhar Misra and others v. Rangalal and others (54 C W N 143 (P C)), their Lordships of the Judicial Committee; in a case relating to a claim of right to a land as a public cremation ground from time immemorial; opined that "the true legal basis of such rights lies in custom," and approved the enunciation of the law relating to such a right, given by the Calcutta High Court in the case of Asrabulla and others v. Kiamatulla Haji Choudhury and others (A I R 1937 Cal. 245), as such took the view that "What the Courts have required of a custom, if the law is to uphold it as a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use."

9. The Calcutta High Court itself in the case of Syed Ali and others v. Sarjon Ali and others (18 C W N 735), following the decision of the Privy Council in 31‑1 A. 75 took the view that the finding that a certain plot of land was lying unoccupied from time immemorial and the villagers had been grazing their cattle thereon for more than 30 years, peacefully and without interruption, was not by itself sufficient, because, it would lead to an impossible position to hold that in such circumstances, where land lying waste has been used by adjoining villagers for grazing cattle over it, probably from time immemorial, the landlord has become disentitled to bring waste or jungle lands under the plough and observed: "A right of pasturage arising from immemorial user of this kind resembles a right based upon custom* * Now a custom must be reasonable and it would be wholly unreasonable that no land over which cattle had hither to grazed should ever be brought under the plough."

10. Again in the case of Saladur Jaman Chaudhuri v. Oajaddin (I L R 63 Cal. 851), the Calcutta High Court reiterated the view that a right of pasturage was a customary right and a custom of this kind to be valid in law must be of immemorial existence and must be reasonable. In this case the facts were that it had been used for 30 to 40 years for the purpose of grazing cattle but since the lands were waste lands of a swampy nature and so long as they remained unfit for cultivation the inhabitants of the adjacent villages grazed their cattle thereon without any objection from the owners, nevertheless, it was held that on these findings the enjoyment of the custom of pasturge from time immemorial had not been established.

11. In the case of Asrabulla and others, v. Kiamatullah Haji Chaudhury and others which was approved by the Judicial Committee in the case, it was held that the rights of pasturage were not easements in the proper sense of the word. They were also not privileges attached to individuals in respect of their lands but they were rights claimed for a fluctuating class of persons in respect of a locality which were intermediate between public and private rights and they attached to certain class of persons or portions of the public and had their origin ordinarily in custom. Furthermore that in such cases the presumption of a lost grant could not be attached in favour of a fluctuating and unascertained body of persons who constitute the inhabitants of a particular village or villages. It was also taken to be as fairly settled that the question of reasonableness or otherwise of a custom is a question of law which can be gone into is Second appeal and the period for ascertaining as to whether the custom is reasonable or not is the period of its inception.

12. It will thus appear that a right of pasturage of this nature can only be claimed on the basis of a customary right and the ordinary incidents of a customary right attach to it, including the manner and method of its proof and that even if after such proof the custom is found to have been established, it must still be shown that it is not unreasonable before it can be treated as a valid custom.

13. As to the nature of the proof required in such cases, I may here refer to the observations of the Judicial Committee in the case of Mr. Subhani and others v. Nawab and others (54 C W N 143) where their Lordships disapproved the practice of applying English rules of proof and observed that :

14. It is undoubted that a custom observed in a particular district derives its force from fact that it has, from long usage, obtained in that district, the force of law. It must be ancient; but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man‑still less that it is ancient in the English technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom cap be accepted. What is necessary to be proved is that the usage has been accepted upon in practice for such a long period and with such invariability as to who that it has, by common consent, been submitted to as the established governing rule of the particular district."

15. This view was reiterated by their Lordships of the Judicial Committee in the case of Baba Narayan Lakras and others v. Saboosa and others (47 C W N 923) where they quoted the above passage and observed that "The burden lies upon one who sets up a customs in dero gation of the ordinary rights of another as the owner of immo vable property to give clear and positive proof of the user relied upon to substantiate the custom."

16. Thus, a custom must be proved by reliable evidence of repeated acts openly done which had been a9sented and sub mitted to in such a manner as to lead to the conclusion that the usage had by agreement or otherwise become the local law of the place in respect of the persons or things which it concerns.

17. Applying these rules to the present case, it will be observed that the findings of the Courts below that the lands for the reclamation of which the plaintiffs complained were partly low lands and during certain periods of the year were annually flooded by water and that the cattle could graze therein only after the chan grass had been cut, do not lead one to the conclusion that the owners of the land must have acquiesced in the right, that is now claimed by the plaintiffs namely, not only of grazing their cattle during the particular period of the year when the land is lying waste and not inundated by water but at all times of the year also of aking the chary grass therefrom for the purposes of thatch. There is no definite proof of any continuo user in the present ease. I am, therefore; in agreement. with the courts below that the continuous user has not been established by the plaintiffs in this case.

18. Apart from this, examining the evidence on the record, one has also to concede that the element of reasonableness is wanting in the present case. The Courts below have found that the tract of land over which the pasturage is claimed is more than what is needed for the grazing of the number of cattle possessed by the villagers. Apart from that, it has also been found that these plaintiffs possess other grazing fields some of which they had in fact sold for the purposes of financing the present litigation. In these circumstances, there can be no manner of doubt that the right that was now claimed by the plaintiffs was not in any sense of the term, a reasonable right.

19. In the result, therefore, I am of the opinion that the Courts below have rightly dismissed the suit of the plaintiffs.

20. Having regard to the conclusion at which I have arrived on the main question in dispute in this appeal, namely, as to the existence of the right of pasturage, I do not consider it necessary to go into the other points raised in this appeal except to say that I cannot accept the contention that the Court of the appeal below has made a wrong approach to the case.

21. So far as the complaint about the non‑consideration of the evidence in the case by the Court of appeal below is concerned, I need only point out that this was a judgment of affirmance and it was not necessary for the Court of appeal below to rediscuss each and every detail of the evidence and gave it opinion with regard thereto. I have noticed that in the con cluding paragraph of its judgment the Court of appeal below has said that it accepts the findings of the trial Court with regard to the evidence on the record. This indicates that the evidence was considered though not discussed in detail. The result, therefore, is that this appeal is dismissed with costs. Leave prayed for tinder clause 15 of the Letters Patent is also refused. A. M.