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Judgment
Venkatasubba Rao, J.—This appeal raises an important question regarding customary rights. The plaintiffs are inhabitants of a village known
as Melagaram in the district of Tinnevelly. They have filed the suit under Order 1, Rule 8, Schedule I, Civil Procedure Code, as representing the
whole body of the villagers. They claim the suit land of the extent of 1 acre and 95 cents to be communal land and allege that it has been, so far as
living memory goes, used for certain communal purposes. In the plaint, the purposes are thus set out:
for herding cattle,
for grazing of cattle,
as a cart track,
as a thrashing floor,
as a burial ground for Brahmin children, and
as a seat of the guardian deity.
The plaintiffs strongly rely upon the fact that at the Settlement of 1875 and again at the Re-settlement of 1911, the land was classed as Mandai
(cattle-stand) poramboke. In 1918, the land was transferred by the Government from the category of Mandai poramboke to Natham poramboke.
The 1st defendant is the Secretary of State. The defendants 2 to 8 are persons belonging to the Potter community, who have built huts on sites
granted to them by the Government out of the suit land. The District Munsif has held that the customary right has been proved in regard to three
out of the six uses referred to in the plaint, namely (1) for herding cattle (2) as a thrashing floor, and (3) as a seat of the guardian deity. I may
remark that the other uses alleged by the plaintiffs do not require serious notice. The Subordinate Judge seems to find (though his finding is not
express) that the communal nature of the land has not been proved. In any event, he appears to think that at the most, the only use by the
community that can be said to have been made out is that of a cattle stand. This he infers from the fact that the land was described only as Mandai
poramboke and no other purpose was mentioned in the Settlement Registers. First, as regards the stone image, I am not prepared to hold that it is
an object of public worship. The image is an exposed one and is within the land granted to defendants 2 to 8. They have no objection to the
plaintiffs removing the image from the land.
Then remain two purposes of those mentioned, namely (1) for herding cattle, and (2) as a thrashing floor. The Subordinate Judge is disposed to
discredit the plaintiffs'' version, as their conduct is inconsistent with their case. Several persons belonging to their party had themselves applied for
grants of house sites out of the plot in question. The first application was made so far back as 1908. Again in 1918, subsequent to the classification
of the land as Natham poramboke, several requests were made by them for grant of sites. The Subordinate Judge argues that this can hardly be
the conduct of persons conscious of the right now put forward. He has accordingly dismissed the suit.
Mr. Sitarama Rao for the plaintiffs attacks the judgment of the Lower Appellate Court. He first relies upon Kuar Sen v. Mamman ILR (1895)
A. 87 for the position that the English rule does not apply, namely, that in the case of a customary right, it must be shown to have been immemorial.
I agree; for, it may now be taken as settled, that no fixed period of enjoyment is laid down by law as necessary to establish such a right. (See
Palaniandi Thevan v. Puthirankonda Nadan ILR (1897) M. 389 which follows the Allahabad case.) Mr. Sitarama Rao next distinguishes Collector
of Godavari District v. Pedda Rangiah (1903) 4 M.L.T. 440 and Taluk Board, Dindigul v. Venkataramier ILR (1923) M. 866 : 45 M.L.J. 333 on
the ground that those cases related to Nathant poramboke, whereas the plot with which we are concerned is Mandai poramboke. As regards
Natham poramboke, Benson and Bhashyam Aiyangar, JJ., observe thus in the first mentioned case:
They throw rubbish on it, graze their cattle on it, use it as a latrine, and the like, and they are rarely interfered with. But it is always understood that
this use is permissive on the part of Government, and that Government has the right at any time to appropriate it for any special public purpose or
grant it to an individual for building purposes.
In the second case, Mr. justice Ayling remarks that where the land is Natham, the enjoyment is patently of a permissive kind and cannot give
rise to any customary right. Mr. Sitarama Rao''s contention is this. When the Government describes a particular plot of land as Natham
poramboke, it declares in terms that it is building site, that, in such a case, any different mode of enjoyment, however long, may be presumed to be
permissive in its origin and that the Government may, at its pleasure, resume, as it were, such land and dispose of it as it likes; but, argues the
learned Counsel, the very description of the land in the present case as Mandai poramboke involves a recognition on Government''s part that it is a
cattle stand, and the cases cited, therefore, do not apply. There is force in this contention, but, as the learned Counsel himself admits, the
description in the Settlement Register is only some, and not conclusive evidence, that the land has been set apart for that purpose. Whether the
communal character of the land has been proved is a mixed question of fact and law, and if I thought that the Lower Court did not apply correct
principles, I would interfere with its finding; but I consider it unnecessary to pursue this, having regard to my view on the next point, with which I
shall proceed to deal.
That point arises thus. The suit plot is Survey No. 71 and measures 1 acre, 95 cents. The extent granted to the potters is 41 cents, or, roughly a
fifth of the total land. There is thus a balance of more than an acre and a half available for being used as cattle stand or thrashing floor, as the case
may be. It is not pretended that this area is insufficient, having regard to the needs of the community. Moreover, there is another plot in the village,
Survey No. 76, measuring 2 acres, 77 cents. Regarding this the Collector observes, that it is just a few yards from the suit plot, that it is fit for
being used as cattle stand and thrashing ground and that the potters'' houses need not therefore be removed from the site in question. Is the
plaintiffs'' customary right then an absolute one, in the sense that it has to remain intact and inviolate through all time, irrespective of changed
conditions or circumstances? The answer is, in my opinion, decidedly in the negative. Is a right, say of free pasturage, acquired at some remote era
by a village, once thickly inhabited, to continue undiminished or unaffected, even after it has become a dwindling hamlet? Supposing its right
extended at one time to 10 acres, must it remain undiminished through all time, even though the village has declined? It is stated in Halsbury:
The nature of the right enjoyed, and also the extent of the land over which it is exercised, are capable of reasonable modification and extension""--
Vol. X, p. 236.
A very clear exposition of the doctrine is contained in the judgment of Farwell,"" J., in Mercer v. Denne (1904) 2 Ch. 534 affirmed by the Court
of Appeal in Mercer v. Denne (1905) 2 Ch. 538. In that case, certain fishermen claimed a right to spread their nets and dry them on the beach
ground of the defendant, a private owner. On behalf of the latter, it was argued that the plaintiffs may dry their nets only on the condition of fishing
for such fish and at such times and with such nets as the fishermen in the reign of Richard I used to do. Farwell, J., observes that if this contention is
sound, ""All improvements and progress are debarred."" Its effect, the learned Judge, remarks, ""is to discard the kernel for the shell, and might result
in making an arrangement that was in its inception reasonable, because of public benefit, become actually injurious to public interests.
A custom derives its validity from its being very reasonable in its inception. By the expression ""that it is reasonable"" is meant, that it is for the
benefit of the Commonwealth. Can, then, a customary right, reasonableness being of its very essence, be so exercised as to be injurious to public
interests? Care must be taken not to confuse reasonableness, an essential element of a valid customary right, with reasonable exercise of that right.
The word ""reasonable"" in one case refers to the origin of the right; in the other, to the present exercise of it. The distinction is brought out very
clearly in the judgment of Tindal, C.J., in Tyson v. Smith (1838) 48 R.R. 539 : 112 E.R. 1265 cited by Farwell, J.:
It is obvious that this is not an argument against the custom being reasonable in its original commencement...it is an objection only as to the mode of
exercising the right so claimed....
That the contention that the right is absolute and inviolable is unsound, appears again from the observations of Lord St. Leonards in Dyce v. Hay
(1852) 1 Macq. 305 also relied on by Farwell, J.:
There is no rule in the law of Scotland which prevents modern inventions and new operations from being governed by old and settled legal
principles...The law of this country, as well as the law of Scotland, frequently moulds its practical operation without doing any violence to its
original principles.
Thus, the fishermen were allowed to exercise their rights according to the varying exigencies of the fishing industry and the requirements of
improved nets. (Page 549.) This decision also shows that the right or obligation, as the case may be, is not one-sided but reciprocal. The right of
the fishermen to reasonably vary the mode of enjoyment is recognised, as I have said, in the portion of the judgment to which I have referred. But
what of the right of the land owner? In that case, it was urged that there was a gradual accretion by the receding of the sea and that the fishermen
were not entitled to exercise their rights over the added extent. This contention was rejected. But, then, it was hypothetically argued, supposing
there were now a mile or more of such accretion, would the plaintiffs be still entitled? Farwell, J., answers, in the first place, it would hardly be
possible to get evidence of actual user over more than the fringe near the sea and in that case ""the extent of the custom could be limited by such
user""; but granting that such user could in fact be shown, even then ""the landowner''s right of free enjoyment would only be limited by a reasonable
exercise of customary rights and it would probably be held unreasonable to insist on drying nets over a large tract of land."" Of the cases referred to
at the Bar, no case, I think, contains a clearer statement than this, of the principle in regard to the reasonable exercise of a customary right.
This is consistent with the view taken by the Judicial Committee, of the law in this country, regarding customary rights. In 8 CWN 425 (Privy
Council) the plaintiffs, resident cultivators of village belonging to the defendants, the proprietors of an Indigo concern, claimed a right of free
pasturage over the waste lands of the villages. Their Lordships, while upholding the claim, guard themselves by saying that it will be advisable to
insert a provision, that the decree should not prevent the defendants from improving their property provided sufficient pasturage were left. That this
is not a casual remark, is shown not only by the judgment but also by the point having been expressly raised in the argument of the respondents''
counsel. This case is referred to and followed in Syed Ali v. Sarjan Ali (1913) 18 C.W.N. 735. The learned Judges observe:
But if there is nothing to show that the land in suit differs in any respect from other waste and if there is plenty of pasturage left in the village, the
plaintiffs are not entitled to relief.
They also refer (as a circumstance to be considered) to the possibility of the cattle having to be driven to an unreasonable, distance in order to
obtain pasture. The principle recognised in these cases was again applied in Kartar Singh v. Ralla (1919) 67 I.C. 306 where the judgment shows
that the Court may have regard in deciding what is reasonable exercise to changing and fluctuating circumstances.
I may lastly point out, that the limitation is not only quantitative, that is, not only may the extent of the land affected be abridged, but, if there be
other land more or less equally suitable, the Courts may, for proper reasons, substitute that land for the original property. The cases to which I
have referred deal with private owners of lands, but the reasoning applies even with greater force to a case like the present, where the Government
as the party affected, is under a clear duty to have regard to public interests under changing conditions.
The second appeal fails and is dismissed with costs (two sets).