Bench:
Simonds, Radcliffe, M Macnaghten
Facts:
In the present case the appellants represent the villagers of Byree, Cuttack, Orissa.A portion of land measuring about 3.90 acres of the respondents was used by the villagers from time immemorial as burial ground. Denying this customary practice of the appellants the respondents wanted to build a rice mill in the disputed area. Therefore, a petition was filled by the appellants in the Munsiff Court in Jaipur. The Court held that it may be a customary practice of the villagers to use the land for cremation purposes, but the right cannot be legally recognised as there were no evidence to prove the same, thereby the petition was dismissed. The Additional Subordinate Judge before whom the case went on first appeal, while noting that the appellants did not depend on any right of easement, held that on the evidence there had been a "dedication" of the land for use as cremation or burial ground. He rejected the view that the appellants' case was based upon "any customary right of user" and expressed his final conclusion on a review of the evidence with the words "In my opinion the reservation of the lands amounts to dedication or a regrant by the landlord." Reversing this judgment, the Patna High Court dismissed the claim of the villagers holding that it was impossible to say that anything amounting to a dedication of the land had occurred in this case. Therefore, on a further the appeal by the villagers the case now lies before the Bombay High Court.
Issues:
Whether the customary practice of the villagers is established with relevant facts as required under Section 13 of the Evidence Act?
Contentions of the Appellant:
The villagers have been using the land for cremation purposes since time immemorial and thus evolved as a custom. The land has been given a plot number with cremation identity in the year 1990 as 1990-2401. But this does not mean that the cremation activities started only from the date on which plot number was assigned. Due to continued usage the villagers have acquired a customary right over the property.
Contentions of the Respondent:
Was rightfully transferred to the respondents by the Zamindar of the village and therefore the villagers cannot enjoy such right any further.
Judgment:
Hearing the parties to the case the Court held that, the villagers have acquired a customary right to carry on creamation activities in the disputed land. Therefore, the building works commenced in the disputed land must be stopped and removed completely. However, the respondents may use the rest of the land for building purposes.
