TMI Blog1949 (10) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ivate industry. The respondents Rangalal, Lachminarayan and Balu Ram, on the other hand, maintain that the disputed area has been validly granted to them, or some of them, by the Zamindar of the Killa Darpan estate and that they are entitled to occupy the site for the purposes of a rice mill which, at the date of the institution of the suit, they were proceeding to erect on it. 2. In the first court, the Court of the Munsiff of Jajpur, questions were raised as to the form of the suit and whether the necessary parties were before the court. Issues were framed with regard to these points. The learned Munsiff decided these issues in favour of the appellants, who were plaintiffs in the suit. Neither of the intervening courts expressed any disagreement with his holding on these issues, and no point with regard to them was pressed in argument before their Lordships. It may be taken, therefore, that the appellants, of whom the third is in fact the owner of an existing rice mill in the same village, are entitled to maintain the suit in a representative capacity on behalf of the villagers and that the suit is not defective in form by reason of the nonjoinder of the Zamindar or of the col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It appears to their Lordships that on proof of the fact of enjoyment from time immemorial there could be no difficulty in the way of the court finding a legal origin for the right claimed. Unfortunately, however, [in the lower courts] the question was overlaid, and in some measure obscured, by copious references to English authorities, and by the application of principles or doctrines, more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions. 4. It is necessary at this stage to notice the primary submission that was made to their Lordships on behalf of the appellants. This was founded on the well known Section 100 of the Civil Procedure Code, which prohibits a second appeal on questions of fact. The Subordinate Judge on first appeal had found that there had been a dedication or lost grant of the disputed area for the purposes claimed and this, it was said, was a finding of fact that could not be disturbed on second appeal. Therefore the judgment of the Subordinate Judge had been wrongly reversed and ought now to be restored. Their Lordships regard it as impossible to treat this appeal in this way. There is more than one objection to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim unknown in law, and evidence limited to such special user would not justify a finding of dedication see Poole v. Huskinson (1843) 11 M. W. 827, Hildreth v. Adamson (1866) 8 C.B. (N.S.) 587, Vestry of Bermondsey v. Brown (1865) L.R. 1 Eq. 204. Much the same result might well be achieved by the creation of a charitable trust binding the land, but that is not dedication, nor is it in question here. At no stage of the hearing is there any record of a claim that the village community constitutes a corporation administering a trust for some classes of its inhabitants, nor was any such argument advanced before their Lordships. 6. The doctrine of lost grant gives no firmer basis for the appellants' case. This doctrine originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user. By English common law prescription had to run from time immemorial which, by convention, began in the year 1189. If it was possible to demonstrate that the user in question, though ancient originated since 1189 the proof of title by the prescription of immemorial user failed. To get round this difficulty judges allowed, or even enc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use. It is by these tests that the appellants' claim in this case must be tried. 8. The evidence adduced at the trial was in some respects conflicting. But any appeal in a court above the first appellate court must necessarily proceed on the basis of such relevant findings of fact as were made by the Additional Subordinate Judge in his review of the evidence. These findings may be summarized in three points. Firstly, he was satisfied that the suit lands are used for generations as cremation or burial ground. Secondly, he held that their appropriation for this purpose did not originate with the Provincial Settlement of 1901, at which date the Plot 1990-2401 was entered in the published record as Smasan ground, with the added note These numbers are kept in reserve for cremation of dead bodies by the Sarbasadharan (public). His finding was that, while this entry supported the villagers' claim to rights in the land, it was absurd to suggest that it was only at that time that the user of it as a cremation ground began. The villagers, he said, have been there from time immemorial: no settlement papers had been produced to show that other plots were previously in use as cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; view the natural, basis of the appellants' claim - customary right. The learned judge was very definitely of the opinion that it would be to misunderstand the position to hold that any entry made in the record-of-rights at the time of the settlement operations ought to be construed as evidence of a contemporaneous dedication. That may be so: though even on this point the judge's observations seem to apply more to settlement operations in general than to what is recorded as having taken place in connexion with this particular Killa Darpan estate, which was a permanently settled one. It must be remembered that contemporaneously with the entries in the record-of-rights the officer who carried out the settlement of this estate stated in his published report with regard to the settlement Areas reserved for public use. These have been reserved after careful enquiry and with the agreement of both landlords and tenants (1.) for pasturage and cremation, and (2.) for public uses. The proprietor took care to exclude culturable areas from these. But, however this may be, the question whether there was a dedication in connexion with the 1901 settlement is not really the question a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immemorial user as is spoken to in this case. 11. The appeal therefore must be allowed, the decree of September 24th, 1943, of the Patna High Court set aside and the decree dated September 12, 1939, of the Additional Subordinate Judge at Cuttack restored with one modification. It contained an order on defendants two and three in the suit to remove their mills, buildings, machinery and other structures from the land within one month, so as to restore the land to its original condition and render it useful as cremation or burial ground. The respondents have pointed out there was no issue in this case as to a burial ground and that the judge ought not therefore to have allowed any right in respect of it. Their Lordships agree with this, and the words or burial ground should be struck out of the order accordingly. Any sums which the appellants have paid to the respondents under orders of the courts below must be repaid to them, and the respondent Rangalal must pay to the appellants their costs of the appeal in the High Court. Their Lordships will humbly advise His Majesty to this effect. The respondents Rangalal, Lachminarayan and Balu Ram must pay the appellants' costs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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