JUDGMENT Lindsay, J.
1. In my opinion this appeal fails in view of the findings of fact arrived at by the Court below.
2. The question for decision was whether the Hindu population of Benares, represented by the defendant-appellant, had acquired a customary right to use the property of the plaintiff for the celebration of the Ram Lila festival. It was alleged that the Hindus had a right to enter on these premises for a period of three days during the Ram Lila and to occupy them for the purpose of giving a dramatic representation of certain incidents in the life of Rama.
3. The plaintiff in the suit purchased this property in the year 1922 from Gopal Das, Raghunandan Prasad and others in whose family it had been since the year 1854. This property consists of a garden enclosed by walls and inside the enclosure is a large garden-house consisting of a hall and some smaller rooms.
4. The plaintiff alleged that there was no right on the part of the Hindu public to enter and occupy any portion of these premises for the purposes mentioned above, and he, therefore, asked for a declaration to this effect and also claimed an injunction restraining the defendant and those whom he represented from trespassing on his property.
5. The Court of first instance dismissed the claim; the lower appellate Court has reversed the first Court's decree and has given judgment in favour of the plaintiff. The defendant now appeals.
6. The law on this subject is laid down in Kuar Sen v. Mamman (1895) 17 All 87. This case is cited in the judgment of the lower appellate Court. I refer to a passage in the judgment which is to be found at p. 92 and which reads as follows:, In our opinion a Court should not decide that a local custom... exists, unless the Court is satisfied of its reasonables 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 has 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.
7. The learned Judge applied the law thus stated to the facts as found by him, and he was of opinion that the defendant had failed to establish the existence of the customary right, in the manner required. The Judge had clearly read and weighed all the evidence which had been adduced in the trial Court. He began by finding that there was no proof of any dedication of the property to the uses claimed by the defendant although that was a plea which had been raised for the defence. He went on to observe as follows:
With the oral evidence I do not propose to deal at any length. That of it which is not partial, if indeed on either side there can be said to be any such, is so vague as to have little value in establishing or disproving a right to do certain definite and clearly specified acts in a certain place at a certain time, In my opinion the witnesses for the respondent did not give evidence such as would establish a customary right in derogation of the title of another.
8. Later on in the judgment the learned Judge observes as follows:
To my mind the evidence on the record does nothing more than prove that, as a result of the actors being allowed to sleep in the garden precincts, various episodes have from time to time been performed within the garden.
9. That in my judgment is a clear finding that the entry upon, and use of, the premises such as it was, was by leave granted and not as of right. The finding in my view is quite unambiguous and perfectly clearly expressed.
10. Another passage of the judgment may be quoted here. The Judge says:
I do not think it can be said that if for reasons of convenience various episodes have from time to time been performed elsewhere, a certain and definite custom having the force of law has arisen.
11. Here again, in my opinion, there is a finding that there was no proof that the alleged customary right was certain and definite.
12. It has been argued before us that the findings of fact arrived at by the Judge are not clear and definite. It is said that the Judge having discarded the oral evidence could not properly find that the user of the premises had been permissive, but it is not correct to say that the Judge discarded the oral evidence. He certainly was not prepared to accept it wholesale and stated at the outset his intention of interpreting it in the light of the circumstantial evidence. Later on he refers to the evidence as partial and also as vague, but there is nothing to show that he rejected it altogether as being unworthy of credit.
13. There can be no doubt that there was before the Judge evidence that the user of the premises had been by leave of the proprietors. There was a statement of B. Ragunandan Prasad, one of the founders, and I take it that, to this extent at any rate, Raghunandan Prasad's evidence was accepted by the learned Judge. It is said that the Judge does not set out in his judgment that he believes the statement of Raghunandan Prasad, but he was not bound to do so. He had the whole evidence before him and there being evidence to support the finding of permissive user it must be concluded that the evidence was believed to the extent of showing that the user had not been as of right but had only been made after leave was granted. These findings are fatal to the case which was put forward in the Courts below by the defendant-appellant. I am, therefore, of opinion that the appeal should be dismissed with costs including, in this Court, fees on the higher scale.
Kanhaiya Lal, J.
14. I regret I am unable to agree with the order proposed. On the 26th of June 1922, the plaintiff purchased a garden, including a house and other buildings standing thereon, situated in Benares City, from Gopal Das and others. The defendants are the managers of a Ram Lila, known as the Chitrakut Ram Lila, which is celebrated at Benares every year. The Ram Lila is performed in parts at different places, representing different episodes of the Ramayan. As the Lila progresses, the scenes of the places of performance are also shifted The allegation of the defendants was that portion of the Ram Lila which represents the episodes connected with the Panch Vati used to be celebrated in the garden on a piece of high ground situated near the Pishach Mochan tank and certain other episodes connected with the subsequent events used to be celebrated in the garden now purchased by the plaintiff, which is situated close to that place. The plaintiff sought to interfere with the performance of the Ram Lila in the said garden and a proceeding was accordingly instituted by the defendant, Chunnu Dat Vyas, under Section 147, Criminal P.C. demanding that security should be taken from the plaintiff to prevent a breach of the peace. A prolonged inquiry followed, resulting in the plaintiff being bound over and restrained from preventing the manager of the Chitrakut Earn Lila from using the garden for the purposes of the Ram Lila for three days, namely, on the 4th, 5th and 6th of Kuar Sudi each year, until the matter was decided by a competent Court.
15. The present suit has been brought by the plaintiff for a declaration that the defendants or any member of the Hindu community interested in the Chitrakut Ram Lila of Benares had no right to accommodate Sri Ram Chandraji or to perform Ram Lila on the 4th, 5th and 6th of Kuar Sudi of each year inside the garden without his permission. He also asked for a permanent injunction to restrain the defendants and the members of the Hindu community from entering the said garden for the said purpose without his permission.
16. The main question for consideration was whether the defendants had been celebrating any portion of the Ram Lila inside the garden or the house situated in it on Kuar Sudi 4th, 5th and 6th of each year, and if so, whether they had been doing so as of right or with the permission of the owners of the said garden for the time being, and since when.
17. In the written statement the defendants asserted that it was part of the religious duty of those managing the Ram Lila performance that there should not be the slightest alteration in the time, place, paraphernalia and method of the performance, and that the garden aforesaid was waqf for the limited purpose of celebrating the Ram Lila at that place on the days in question.
18. The Court of first instance went into the evidence in considerable detail and came to the conclusion that the garden aforesaid was used on Kuar Sudi 4th, 5th and 6th for the stay of Ram Chandraji in the garden-house at night and for the performance of certain portions of the Ram Lila there on those days. It treated the garden as having been dedicated for the limited purposes aforesaid. The lower Appellate Court, however, found that no such dedication was established, and the correctness of that finding is not here seriously disputed. Regarding the right to celebrate the Ram Lila inside the garden it observed that while the oral evidence produced on either side was so vague as to have little value in establishing or disproving aright to do certain definitely clear and specified acts at a certain place at a certain time, or to establish a customary right in derogation of the title of another, all that could be said to have been proved by the evidence was that "as the result of the actors being allowed to sleep in the garden precincts, various episodes had from time to time been performed in the garden." It did not proceed to specify the particular episodes which were performed inside the garden and from what time; and it went on to observe that if for reasons of convenience various episodes have from time to time been performed inside the garden, it could not be said that a certain and definite custom, having the force of law, had arisen or that it could be regarded as certain or reasonable.
19. The property in dispute has been held by the immediate predecessors-in-title of the plaintiff since 1854. On the date of first hearing it was stated on behalf of the plaintiff that a man named Girija Kant Jha, who had verified the written statement, was acquainted with the facts. He was examined. He admitted that for the last forty or fifty years Ram Chandraji and his party used to be accommodated in the garden-house with the permission of the owners; but he denied that any episodes connected with the Ram Lila were actually performed inside the garden. The Courts below find that not only Ram Chandraji and his party have been staying on Kuar Sudi 4th, 5th and 6th during the performance of the Ram Lila celebration in the garden from the last forty or fifty years, but certain episodes of the Ramayana which took place outside the Panch Vati were also celebrated there. It was the duty of the plaintiffs in these circumstances to establish that they did so by their leave. The only witness examined on the point was Raghunandan Prasad, one of the plaintiffs, whose statement was that he used to invite Ram Chandraji into this garden year after year and supply bhoj (food) and perform arti on his own account during the said period. The learned District Judge does not discuss his evidence or that of the other witnesses examined in the case. On the other hand, he observes that although the witnesses on both sides were in the main men who from worldly position or religious profession should be above telling lies, he was by no means satisfied that the evidence of the witnesses either for the plaintiff or for the defendants could be unhesitatingly accepted as correct. It does not, therefore, appear whether the conclusion at which he arrived namely, that the evidence on the record did nothing more than prove that, 'as a result of the actors being allowed to sleep in the garden precincts various episodes used from time to time to be performed within the garden was based on inferences drawn by him from the circumstances established by the evidence or from any other facts. He did not say that he believed the evidence of Raghunandan Prasad and that the user claimed by the plaintiff originated in permission granted to the managers of the Ram Lila. He probably thought that the actors must have been allowed to sleep in the garden as a matter of convenience" and that was enough to destroy or stop the growth of any right. A customary right is recognized by law [vide Section 2(b) Easements Act, 1882] and as pointed out in Kuar Sen v. Mamman (1895) 17 All 87.
Where a local custom excluding or limiting the general rules of law is set up, a Court should not decide that it exists unless such, 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.
20. There was no statutory period of enjoyment provided, during which in order to establish a local custom, it must be proved that the right claimed to have been enjoyed, has, by local custom, been so enjoyed. In Shadi Lal v. Muhammad Isaaq Khan (1910) 38 All 257, it was held that the existence of a customary right could be inferred from long enjoyment not exercised by permission, stealth or force. The question as to whether the defendants have been using the garden for the celebration of certain episodes of the Ramayan and for the stay of Ram Chandraji during the days in question inside the garden openly and as of right, or by leave or license, therefore, required determination on the evidence adduced; but the finding of the learned District Judge on the point is vague and ambiguous. He finds that certain episodes have from time to time been performed within the garden; but he observes that they are so performed as the result of the actors being allowed to sleep in the garden precincts. If his intention was to hold that the actors were allowed to enter the garden under some express permission granted to them by the owners of the garden from time to time, he ought to have explicity said so for in no portion of his judgment does he refer to the evidence on which the theory of permission can be said to be based. In fact, he does not discuss the evidence of Raghunandan Prasad at all. If he meant to say that the user grew because it was acquiesced in or not objected to by the owners of the garden, the theory of invitation or express permission falls to the ground.
21. If he made the above observation as an inference or conclusion drawn by him from the state of the locality or other facts established by the evidence, such as the existence of a doorway or a walled enclosure round the garden, that inference or conclusion ought to have been so expressed, for as pointed out by their Lordships of the Privy Council in Ram Gopal v. Shamskhaton (1893) 20 Cal 93, while findings of fact cannot be questioned, the soundness of conclusions drawn from any facts may involve matters of law and may be questioned by a Court of second appeal. A party to an appeal is entitled to claim a clear, definite and specific finding on every issue of fact raised in the case, and if the finding is vague, indefinite or ambiguous, it is but right to insist on such a finding being given or to send an issue back in order that the question of fact might be determined on the evidence adduced in a manner not open to misconstruction or doubt. The finality given by law to a finding of fact arrived at by a Court of first appeal, renders it necessary that the finding should be arrived at after due circumspection and be expressed in clear and definite terms. The conclusion arrived at by the lower appellate Court in this case is expressed in such vague terms that it is difficult to say whether it meant to conclude that the user was permissive or that it had been acquiesced in the past for reasons of convenience or otherwise. A customary right may arise by agreement or prescription and may be deduced from long and open user. In these circumstances, it seems to me that the proper course would be to send down an issue to the lower appellate Court to determine whether the episodes in question were performed inside the garden with the permission of the plaintiff or the then owners of the garden-house in question or openly and as of right in accordance with a custom existing in the locality and from what period.
22. The order of the Court is that the appeal is dismissed with costs including in this Court fees on the higher scale.