P L D 1961 Dacca 79 (PLP)

This appeal is against the decision of the Subordinate Judge, 1st Court, Sylhet, arming the decision of the Munsiff 1st Court, Habiganj, dismissing a suit for declaration of the plaintiffs, customary gocharat right in the lands.

2. The plaintiffs, who are the appellants before me, instituted the said suit as representatives of the villagers of Tamasphore, Halitola, Baraikandi and Madanpore claiming that the said villagers have a customary gocharat right for grazing cattle and livestocks and for cutting grass in the lands of the first three schedules to the plaint. They claimed that as cultivators they had to maintain cattle and livestocks or the purposes of their cultivation and that from time immemorial they had been grazing their cattle over the suit lands to the knowledge of all and every one without any interruption. But defendants Nos. 1 to 8 with the help of defendants Nos. 9 to 12 were wrongfully trying to reclaim the lands of the third schedule appended to the plaint for the purposes of cultivation.

3. The suit was contested by defendants Nos. 1, 4, 5 and 8 by a joint written statement. These defendants, inter alia, denied the existence of any such gocharat right in the disputed land and claimed that they had got joie right in the lands of all the three schedules for more than 50 years and that in exercise of their said jote right they and their predecessors‑in‑interest had been cutting Binna Chan grass and catching fishes on the suit lands since the inception of the tenancy and their predecessors had re‑claimed the lands of the said 3rd schedule where boro paddy was grown.

4. The trial Court, after discussing the oral and documentary evidence in the case, found that the defendants had, in fact, reclaimed some portion of the suit lands recently and that the plaintiffs used to graze their cattle in the suit lands as well as cut grass therefrom during the rainy season. But nevertheless, the customary right of pasturage claimed by the plaintiffs had not been established, for the acts of grazing of cattle and cutting of grass by themselves did not establish such a right. It merely indicated that the plaintiffs' cattle were allowed to graze in the cut roots of the Binna Chan which was cut every year by the defendants who sold the same for thatch and thus, every year the right of the plaintiffs was interrupted by the defendants. Hence, such a limited right could not be classed as a customary right of pasturage. The trial Court was also of the view that to enforce such a right, would be unreasonable, for them the holder of the land would be compelled to keep the lands vacant. Besides, the plaintiffs had other gocharat land and the number of cattle and other livestocks belonging to the plaintiffs did not justify the keeping of the such a vast tract of land for the purposes of pasturage. Thus, according to the trial Court, two important elements of such a customary right, namely, uninterrupted user and reasonableness were wanting in the case, even though the plaintiffs may have established that for a long time they used to graze cattle in a limited manner, namely, by grazing the cattle after the chan grass had been cut by the defendants in exercise of their jote right. The trial Court, therefore, dismissed the suit with costs.

5. On appeal the learned Subordinate Judge found that the evidence clearly established the jote right of the defendants as also that plaintiffs used to graze their cattle on the cut roots of the binna chans; but was of the view that this particular mode of grazing could not confer any pasturage right upon the plaintiffs. 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 the defendant's said jote lands, and hence, he too, armed 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 con currently 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 dup the case of the defendants and finding that the defen dants' 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 complainant 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 their 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 Vie Judicial Committee in the case of Bholanath Hundi 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 origin for the right claimed". It was, however, pointed out that although in the case before them it had been established that the plaintiffs as cultivators by occupation belonging to nine villages had enjoyed the right of pasturage in the suit lands from time immemorial, yet the right could not be claimed as a right in grass 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 Miera 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 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 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. 248) and, 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 continuous in use."

9. The Calcutta High Court itself in the case of Syed Ali and others v. Sarjan Ali and others (18 C W N 735), following the decision of the Privy Council in, 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 inter ruption, was not by itself sufficient, because, it would lead to an impossible position to held that in such circumstances, where leaves lying waste have been used by adjoining villagers for grazing cattle over it, probably from time immemorial, the landlord has become disentitled to bring such 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 hitherto grazed should ever be brought under the plough."

10. Again, in the case of Saladur Jaman Choudury v. Wajaddin (I L R 63 Cal. 851) the Calcutta Hight 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 found that the land 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 pasturage from time immemorial had not been established.

11. In the case of Asrabulla and others v. Kiamatulla Haji Choudhury and others (A I R 1937 Cal. 245) which was approved by the Judicial Committee in the case reported iv, 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 in 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 Mst. Subhani and others v. Nawab and others (A I R 1941 (P C) 21) where their Lordships disapproved the practice of applying English `rules of proof and observed that "It is undoubted that a custom observed in a particular district derives its force from the 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 to established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of the particular district."

14. 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 933) where they quoted the above passage and observed that "The burden lies upon one who sets up a custom in derogation of the ordinary rights of another as to owner of immovable property to give clear and positive proof of the user relied upon to substantiate the custom." Thus, a custom must be proved by reliable evidence of repeated acts openly done which had been assented and submitted 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.

15. 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 owners of the land must have acquiesed 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 taking the chan grass therefrom for the purposes of thatch. There is no definite proof of any continuous user in the present case. I am, therefore, in agreement with the Courts below that the continuous user has not been established by the plaintiff in this case.

16. 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.

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

18. Having regard to the conclusion to 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.

19. 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 give its opinion with regard thereto I have noticed that in the concluding 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 under Clause 15 of the Letters Patent is also refused. K.B. A. Appeal dismissed.