JUDGMENT John Edge, Kt., C.J. and Banerji, J.
1. The plaintiff, who is the appellant in this appeal under Section 10 of the Letters Patent, brought his suit for the possession of a piece of land, which, he alleged, formed £art of the court-yard of his kothi, and for the demolition of a chabutra thereon, which the defendants claimed the right to maintain and use. The defendants in their written statement 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 alums were exhibited upon the chabutra and a takht was placed upon it. At the trial in the Court of the Munsif it was orally pleaded on behalf of the defendants that they had obtained a title to the land and chabutra by adverse possession.
2. The Munsif found that the land in question was the plaintiff's and was part of the court-yard of his kothi and that the defendants had not acquired any title to it by adverse possession. This is what the Munsif said on the question of adverse possession in his judgment:
I am inclined to think that the defendants and other mirasis of the locality have bean laying their tazias on this land during the Moharram. This is the only right which the defendants have acquired by long and uninterrupted usage. I cannot go so far as to hold that such possession amounts to adverse possession." Further on in the judgment the Munsif, after discussing some decisions, found as follows: "I therefore hold that the defendants, by virtue of an old custom, have acquired right to lay their tazias on this spot during the Moharram only and perform the ceremonies incidental to it," and he gave the plaintiff a decree for possession of the land and for demolition of the chabutra, but reserved to the defendants a right to erect, two days prior to each Moharram, a temporary chabutra on the piece of land and to use such chabutra by laying upon it their tazias and performing upon it the incidental ceremonies from the 1st to the 12th days inclusive of the Moharram in each year. From that decree the plaintiff appealed, as did also the defendants, to the Court of the District Judge of Bareilly. The learned District Judge found that the land in question was the plaintiff's and that the defendants had acquired no right by prescription to use the land or the chabutra and that no custom to use the land or chabutra had been established. After stating his reasons, with which we agree, for holding that the defendants had acquired no easement by prescription, he thus discussed the question of a custom:
Have the defendants and other mirasis a customary right to use the land for stationing their tazias and alums at the time of the Moharram? Assuming that such rights might possibly be acquired against proprietors of land by a class only out of the public, I think proof is requisite that the use has, been of right and had not a merely permissive origin, and that the right should be distinctly claimed as by custom. Now in the present case, beyond the mere fact that various mirasis, whose connexion with each other is not established, have, within a period of twenty years or so, placed tazias on the land and sung there, I find no evidence of a right. The particular part of Bareilly does not seem to have been long inhabited, and the only clue to the origin of the use is a suggestion by Chaudhri Shib Lal, witness for the defendants, that his ancestor may have permitted it when he was namindar. But besides this, the defendants do not set up a claim to customary user, but pleaded a proprietary right which they have failed to establish." The District Judge allowed the plaintiff's appeal, and varied the decree of the Munsif by directing that the chabutra be removed without permission to the defendants to re-build temporarily.
3. From the decree of the District Judge the defendants appealed to this Court. The appeal was heard by our brother Aikman. He was of opinion that the defendants had in their written statement claimed a customary right to use the land and chabutra for the ceremonies of the Moharram. Our brother Aikman in his judgment, said: "There was evidence in this case that the mirasis to which caste the defendants-appellants belong, had for a period of twenty years or so placed tazias on the disputed plot and sung there. There was a suggestion that this was by leave of the zamindar, but there was no evidence in support of this. In my opinion the facts found by the District Judge are sufficient to establish the custom set up by the appellants," and he restored the decree of the Munsif. From that decree of our brother Aikman this appeal has been brought by the plaintiff.
4. It is obvious from the findings of the District Judge that no easement by prescription had been proved in this case. There was no dominant tenement. It was not proved that the defendants or any of them had as of right and without interruption and for twenty years enjoyed a right to use the land or the chabutra for any purpose whatsoever. All that was proved, according to the findings o the District Judge, was "that various mirasis, whose connection with each other is not established, have within a period of twenty years or so placed tazias on the land and sung there." We are bound by the findings of fact of the Lower Appellate Court, but we are not bound by the conclusions of law of the Lower Appellate Court. What we have to consider is, does the fact which the District Judge found--that various mirasis whose connection with each other was not proved, had "within a period of twenty years or placed tazias on land and sung there,"--unexplained, necessarily in law lead to the conclusion that there was a local custom by virtue of which the easement now claimed by the defendants was acquired?
5. If that fact found by the District Judge and unexplained does not necessarily in law lead to that conclusion, the decree of the District Judge was by reason of Section 584 and 585 of the Code of Civil Procedure final and non-appealable.
6. Section 18 of the Indian Easements Act, 1882 (Act No. V of 1882) leaves at large the question of law how a local custom may be established. As such a local custom as is now set up on behalf of the defendants excludes or limits the operation of the general rule of law that a proprietor or other person lawfully in the possession of land, and whose rights are not controlled or limited expressly or impliedly by Statute law, by grant, or by contract, has an exclusive right to the use or enjoyment of his land for all purposes not injurious to the rights of his neighbours, it is necessary that those setting up such a custom as that in the present case should be put to strict proof of the custom alleged by then.
7. 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 of otherwise become the local law of the place in respect of the person or things which it concerns. In order to establish a customary right to do acts which would other wise 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. We cannot in these Provinces apply the principle of the English Common Law that a custom is not proved if it is shown not to have been immemorial. To apply such a principle as we have been urged by the counsel for the appellant to do would be to destroy many customary rights of modern growth in villages and other places. The Statute law of India does not prescribe any period of enjoyment during which, in order' to establish a local custom, it must be proved that a right claimed to have been enjoyed as by local custom was enjoyed. And in our opinion it would be inexpedient and fraught with the risk of disturbing perfectly reasonable, and advantageous local usages regarded and observed by all concerned as customs to attempt to prescribe any such period.
8. 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.
9. As we understand the judgment of the District Judge, all which he found to have been proved by the evidence was that different mirasis had within a period of about twenty years before suit placed, during the Moharram, tazias upon the land and had sung there, but that it was not proved, at any rate to his satisfaction, that there was any connection between such different, mirasis, or that they represented the body of mirasis of Bareilly, or even of the particular mohalla or part of Bareilly in which the plaintiff's land is situate. We cannot say that in law the District Judge was bound, on the evidence before him in first appeal, to hold that a local custom under which the defendants could lawfully and adversely to the plaintiff go upon his land or maintain or erect a chabutra there was established. Under such circumstances, we allow this appeal with costs, and, setting aside the decree of this Court, we restore and affirm the decree of the District Judge.