Agarwala, J.@mdashThis is a Plaintiffs'' appeal arising out of a suit for a declaration that the Plaintiffs as representatives of the Musalmans of village Mirza Murad in the district of Banaras have a customary right to take out tazias in a procession along a certain route in the village and in passing through that route to place tazias in the south-eastern corner of plot No. 542 of village Mirza Murad on the tenth day of Moharram, and for a permanent injunction restraining the Defendants, who were sued as representatives of the Hindus of the same village, from interfering with the Plaintiffs'' rights, the route in question was a circuitous route passing through the agricultural plots of some of the Defendants.
2. The defence to the suit was that upto a certain point marked ABCD the Musalmans of the village did take out their tazias on that part of the route, but that from that point onward they followed a public road which went straight to the Karbala, and that they did not follow the circuitous route passing through agricultural plots of some of the Defendants. It was further pleaded that the Plaintiffs had not acquired any right by reason of any lost grant or by way of customary right.
3. The trial Court decreed the suit. On appeal the lower appellate Court dismissed the suit. The lower appellate Court considered the evidence on the record and came to the following conclusion:
The evidence is vague as to the exact manner in which the alleged right is exercised. As we have seen, some witnesses say that the procession passes across fields and if there are any standing crops the tenants owing the crops cut a passage through them for the procession. But the other witnesses admit that no damage is caused to the crops by the procession and that when there are standing crops the procession goes along the boundaries of the fields ....
Thus the right if it exists is obviously enjoyed by the express or implied consent of the owners of the fields or lands over which the procession passes.
4. As regards the placing of tazias in the groves of Raja Teli, the learned Judge found as follows:
... the Plaintiff Rahmat Shah was unable to give any reason for the custom. If the evidence of the Respondents'' witnesses is believed it may be that tazias were placed there because it was found to be convenient open place near the Karbala and for no other reason. As I have pointed out before, the witnesses have admitted that before grove was planted on this place of land it was freely used even by bullock carts and no objection would naturally be made by the owners if the tazias were placed there at the end of their journey to the Karbala. But it cannot, in my opinion, be said that by doing so the processionists acquired a customary right to place their tazias on this particular piece of land and to prevent the owner thereof from enclosing it and planting a grove on it.
5. Earlier the learned Judge had said:
The evidence of the sub-inspector is that the District Magistrate went to the spot in the year 1940-41 and actually indicated a route which passed outside the grove of Jaggu Teli. It would thus appear that even if the tazia procession takes a route as indicated on the map (Ex. 5) it is not difficult by a slight deviation to avoid making a breach in the wall of Raja Teli''s grove and passing through his grove. Thus the right if it exists is obviously enjoyed by the express or implied consent of the owners of the fields or lands over which the procession passes.
6. The Plaintiffs have come up in second appeal to this Court. On their behalf Mr. Ishaq Ahmad has pointed out that the learned Judge was in error in holding that some of the witnesses had stated that the tazia passes along the boundaries of fields when there are crops in the fields He has read to me the evidence of a witness who had stated that when there are crops in the fields the tazia is carried through the crop, but that the processionists pass along the boundary of the fields. Some other witnesses had stated that when there are crops in the fields a passage is cut through the crops in order that the tazias may pass. Some other witnesses had admitted that this was not so. On the whole, therefore, it seems to be very difficult to believe the statements of those witnesses who either said that a passage is cut through the crops to allow the tazia to pass through the fields or the statements of those witnesses who said that the tazia alone passes through the fields and the procession passes on the boundary of the fields. It, therefore, appears that the learned Judge''s finding that the evidence on the point was vague was not wrong.
7. It appears that there is a passage from point D in the map to the Karbala. It appears to be a straight passage and a very short one. According to the Plaintiffs they had been taking this circuitous route because upto a certain point on this route some of the houses of the residents of the village are situated and they wanted to take the tazia in front of every house in the village although in doing so they would pass through several agricultural fields of some of the Respondents.
8. The law on the point is not in doubt. In the leading case of Kuar ken v. Mamman ILR 17 All. 87 the Plaintiff had sued for possession of a piece of land, which according to him formed part of the courtyard of his kothi and for demolition of a Chabutra thereon. The Defendants denied the Plaintiff''s title and alleged that they always used the Chabutra as a sitting place, and that during the Moharram the tazias and alams were exhibited upon the Chabutra and a takht was placed upon it.
9. The trial Court had found that the Defendants had a right to use the land in the manner alleged by them. The lower appellate Court was of opinion that "various mirasis whose connection with each other had not been established had, within a period of twenty years or so, placed tazias upon the land and sung there."
10. It was held by this Court that this finding of fact did not, in law, lead to the conclusion that there was a local custom by virtue of which the right claimed by the Defendants could be said to have been acquired. It was observed:
A local custom to have the effect of excluding or limiting the operation of the general rules of law must be reasonable and certain. A local custom as a general rule is proved by good evidence of a usage which has obtained the force of law within the particular district, city, mohalla or village, or at the particular place, in respect of the persons and things which it concerns. Where it is sought to establish a local custom by which the residents or any Section of them of a particular district, city, village or place are entitled to commit on land not belonging to or occupied by them, acts which, if there was no such custom, would be acts of trespass, the custom must be proved by reliable evidence of such repeated acts openly done, which have been assented and submitted to, as leads to the conclusion that the usage has by agreement or otherwise become the local law of the place in respect of the persons or things which it concerns. In order to establish a customary right to do acts which would otherwise be acts of trespass on the property of another the enjoyment must have been as of right and neither by violence nor by stealth, nor by leave asked from time to time.
11. They further observed:
In our opinion 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 certainty as to extent and application, and is further satisfied by the evidence that the enjoyment of the right was not by leave granted or by stealth or by force, and that it had been openly enjoyed for such a length of time as suggests that originally, by agreement or otherwise, the usage had become a customary law of the place in respect of the persons and things which it concerned.
12. In Baba Narayan Lakhras v. Saboosa 1943 A.W.R. (P.C.) 69 the Privy Council laid down that in the case of a claim to customary right it must be shown that it had been exercised in such circumstances and for such length of time that it came to be exercised as of right. Thus in order that a local custom may be said to have been established it must be shown-
(1) that it has been exercised as of right, and not by stealth or force or leave or license taken from time to time.
(2) that it has been exercised for such length of time that it has come to be regarded by the residents of the locality as the law of the land binding on everybody and recognised by everybody,
(3) that it is a reasonable one, and
(4) that it is certain and definite.
13. Now, applying these tests, the evidence on the record falls far short of proving a local custom, in that it fails to establish-
(1) that the tazias and the procession were taken out through the route claimed in the plaint as of right, or
(2) that it was a certain route, or
(3) even that it was a reasonable custom.
14. It could not be as of right when the tazias and the processionists could not be taken through the fields as claimed in the plaint when the crops were standing thereon, and when the tazias and the processionists had to pass through the boundaries of the fields. Even when it passed through the fields when there were no crops no definite route was proved. There is none in existence on the spot in the, fields and the claim that the tazias could pass on any part of the field would be unreasonable as it would virtually destroy the use of the entire fields.
15. For all these reasons I think that there is no flaw in the judgment of the learned District Judge. As pointed out by him nobody in villages objects to persons passing on the boundary of the fields and such user, even if established, must be deemed to have been made by leave and license obtained off and on. By such user no custom can be said to have grown.
16. As regards the alleged custom of placing the tazias in the grove of Raja Teli, I do not find any reason to differ from the finding recorded by the learned District Judge. It does not appear to me that the learned District Judge was wrong in holding that even if the tazias were placed in the grove it was not done as of right or by virtue of a custom. The land in dispute appears to have been a vacant piece of land which was used even by bullock carts and no objection was raised by the owners as it was vacant. When they planted a grove and closed to grove it was then alone that an objection was raised. The District Magistrate went to the spot in the year 1940 and indicated a route outside the grove. I cannot say that the learned Judge of the Court below was wrong in the view he took of the case.
17. The right to place tazias in the grove was claimed as part of the right to take the tazias through the route indicated in the plaint. Since the right to take the tazias through the route claimed has not been established, it can hardly be said that the placing of the tazias in the grove was by virtue of a custom.
18. I, therefore, dismiss the appeal, but in the circumstances of the case I order the parties to bear their own costs of this Court.
19. Leave to appeal under the Letters Patent is refused.
