P L D 1971 Dacca 75 (PLP)

This appeal is at the instance of the plaintiffs who brought Title Suit No. 2 of 1951 in the Second Court of Munsiff, Moulvibazar under Order I, rule 8 of the Code of Civil Procedure for a declaration that the plaintiffs and their co‑villagers of the 9 villages have got customary right of pasturage in the lands in suit as described in Schedule 2 to the plaint. It is the case of the plaintiffs that these villagers have a customary right of pasturage in the disputed land from time immemorial and the defendants having threatened to interfere with the said right of the plaintiffs they were constrained to file the instant suit for establishment of their customary right of pasturage in the same. The defendants filed 9 sets of written statements to contest the suit and their contention is the same. The said defendants have denied the right of pasturage in the lands in suit and it is their positive case that every village has its own pasturage ground. The case of defendants 11 and 12 is also to the effect that excepting Mouza Tilakpur they have no tenant in other villages and as such there has not been any occasion for them to provide the villagers of the said villages with pasturage. The learned Munsif after considering the material evidence both oral and documentary on record came to a finding that the plaintiffs failed to prove their customary right of their pasturage in the land in suit and accordingly he dismissed the suit. There was an appeal which was disposed of by the learned Subordinate Judge, Second Additional Court, Sylhet in Title Appeal No. 12 of 1959 arming the decision of the learned Munsif. The appellate Court below has also found after con sidering the material evidence on record and several decisions in the line that plaintiffs failed to prove their case of customary right of pasturage in the disputed land. The said decision of the Courts below resulted in the Second Appeal which was preferred by the plaintiffs. I have heard the learned Advocates appearing on behalf of both the parties and read the judgments of the Courts below. Mr. Nurul Huq Bhuiyan, learned Advocate for the appellants sub mits that both the Courts below particularly, the appellate Court below have misread the oral evidence adduced in the case and thus arrived at an erroneous decision with regard to the customary right of pasturage of the plaintiffs in the disputed land. While developing his point Mr. Bhuiyan has contended that the Courts below having misread the evidence erroneously arrived at a finding which cannot be in any way covered by the decision referred to in their judgment I am unable to accept the contention of Mr. Bhuiyan in this regard. It would appear that both the Courts below have fully considered the oral evidence and also the documentary evidence and the matter is really concluded by concurrent findings of facts. The appreciation of evidence of the P. Ws. has been objected to by Mr. Bhuiyan on the ground that the said witnesses were competent because they hailed from the same villages and only to prove the customary right of pasturage as claimed they were the right and proper persons to give testimony. He submits that the appellate Court below should not have discarded the evidences only on the ground that the witnesses hailed from the villages where they claimed the customary right of pasturage. This contention of Mr. Bhuiyan cannot be upheld because the mode of appreciation of evidence may differ from Judge to Judge and that is why the Supreme Court has also found, particularly, in cases where the findings are concurrent, that in Second Appeal it should not be interfered with. I may refer in this connection to the decision in the case of Abdul Majid and others v. Khalil Ahmed (12 D L R 132 (S C)), and to the observation of Munir, C. J. to the following effect: "The High Court has no jurisdiction to entertain Second Appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law which may passively have produced an error or defect in the decision of the case on the merits." Moreover, I find from the decision of the Courts' below that they have considered some important evidence adduced in the case which would vitally cut at the root of the plaintiffs' case for a customary right. For instance, the appellate Court below has quoted the evidence of P. W. 1 which runs as follows "The Mirasdars are in possession in this way and we possess with their consent." On this evidence the Courts below have rightly found that if the villagers were in possession of the lands in suit with the consent of the landlords their case of customary right could not be even thought of on such evidence. In fact, the customary right pre‑supposes that it must be in existence on the assertion of that right by the person enjoying the same as of right and notl6 dependent on the consent or otherwise of anybody else. It has been also observed by the appellate Court below with reference to the evidence of P. W. Samiruddin who is a resident of Sree chandrapur and is a tenant of the Raja of Dhubal Hati and grazes his cattle in a gochar known as Jamaikona Gochar, that according to him the people of village Longarpur used to graze their cattle in the patit lands of Longarpur and the people of the said village have not been the plaintiffs in the suit and as such the evidence of the said witness has dealt a striking blow to the primary case of the plaintiff's. t have found that the Court of appeal below is quite justified in his observation to that effect. It will also appear from the documentary evidence, particularly, Exh. D series that the villagers in question applied for jote settlement of the land and the plaintiff No. 4 Nazimulla was also an applicant. His application for settlement is dated 5‑3‑49 Exh. D(42). The present suit was instituted on 23‑1‑51 and these Exh. D series were filed on 28‑3‑

51. That shows that these Exh. D series were admitted into evidence in natural course and the same positively disproved the plaintiffs' case of customary right of pasturage. I may here note that the learned Munsif has taken pains to consider this documentary evidence in his decision and the learned Subordinate Judge should have also equally taken pains to consider the said documentary evidence to strengthen his judgment but unfortunately he left this documentary evidence out of consideration. He has relied on oral evidence in arriving at his decision. The learned Munsif has also considered Exhs. 2, 3, 3(a) to show that there were litigations over some lands wherein the villagers asserted their right of pasturage and the landlord gave settlement to the individuals of the said villages. The appellate Court below of course has based his decision on consideration of the elements which really constitute the customary right, namely, the custom to be followed must be immemorial, reasonable, continuous without interruption since its origin and must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to be obtained and the persons whom it is alleged to have affected. The learned Subordinate Judge has relied on certain decision, namely, Mahamaya Debi v. Haridas Haider and another (A I R1915 Cal.161), Saladar Jaman Chudhuri v. Oajaddin (I L R 63 Cal. 851) and Barlndra Chandra Das and others v. Maulvi Mahbubal Quadir Chowdhury and others (P L R 1954 Dacca 665) with regards to the case of customary right of pasturage. The principle of law as enunciated in those cases are quite applicable in the facts and circumstances of the present case before me in holding that the plaintiffs have not acquired customary right of pasturage in the lands in suit. The appellate Court below has also relied on the decision in the case of Kali Charan Das and others v. Tamiruddin alias Jamiruddin and others (P D L 1959 Dacca 147), where Nandi, J. held that after passing of the State Acquisition Act all customary rights and easements which are incumbrances have been extinguished as soon as that estate to which that right related was acquired by the Govern ment. Mr. Bhuiyan, learned Advocate for the appellants submits with reference to the said decision that it could not be applied because the suit was instituted in the year 1951 before the passing of the State Acquisition Act. But the learned Advocate should take notice of the point that the Court of Appeal can take the subsequent events and the change of law into consideration in arriving at its decision. On this point reference may be made to the case reported in P L D 1958 Dacca 36 wherein it has been held as settled principle of law that not only the Courts of original and appellate jurisdiction but even the executing Courts can take the changed circumstances into consideration while adjudicating a matter in issue at subsequent stage. In the result, I do not find any substance in the contentions of the learned Advocate appearing for the appellants and accordingly I dismiss the appeal with costs and uphold the judgment and decrees passed by the Courts below. A. E. Appeal dismissed.