# STATE OF BIHAR & ORS v. SUBODH GOPAL BOSE & ANR

- **Citation:** [1968] 1 S.C.R. 313
- **Court:** Supreme Court of India
- **Decided:** 1967-08-22
- **Bench:** J. C. Shah, S: M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihar-ors-v-subodh-gopal-bose-anr-4129
- **Pages:** 14

## Headnote

Bihar Tenancy Act, 1885, s.102-Custom-sneets prepared underRight of tenants of Lower Murli Hill (Shahabad District) to quarry
limestone fo1' trade purposes whether supported by said custom
sheets-Right whether could be claimed as a profit a prendre or customary easement-Riuht m¥St be reasonable to be accepted.
Respondent No. l acquired tenancy rights in five plots in the
villages of Biknaur and Samahuta situated in the area known as
Lower Murli Hill in District Shahabad;-Bihar. In 1949 he filed a
plaint in the Court of the Subordinate Judge Sasaram, against the
State of Bihar and others, claiming inter alia that as a tenant he had
a customary right to quarry limestone for trade purposes from the
Lower Murli Hill. The claim was based mainly on certain entries in
the Custom-sheets prepared at the time of the Cadastral Survey in
1913 under s. 102 of the Bihar Tenancy Act, 1885. The trial court rejected the claim but the High Court held the custom to be established by the evidence of the Customs-sheets. The defendants appealed.
HeldH The High Court was in error in holding that the plaintiff had established the custom pleaded by him or that it was reasonable.
(i) There was nothing to show that the practices and privileges
recorded in the Custom-Sheets were exercised as a matter of right.
The record has presumptive value. But the revenue authorities were
concerned to ascertain the existing state of affairs and not to determine whether the practices and privileges were ancient, certain,
reasonable and continuous. As evidence of local custom, the custom
sheets had therefore not much value. On the other hand there were
indications that the exercise of the privileges recorded therein was
permissive. Even on the most liberal interpretation they did not provide evidence of the exercise of the privilege of commercial exploitation of limestone from the area in question. [317D; 319G]
(ii) Even granting that the Custom-sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta excavated stones from the hills near the villages for purposes of trade,
a claim of right founded on that custom must be held unreasonable
and incapable of enforcement by the sanction of a court's verdict.
[320BJ
A clllim in the nature of a profit a prendre operating. in favour
of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid
custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a focality are entitled · to exercise
specific rights against certain other porsons or property in the same
locality. To the extent to which it is inconsistent with U>e generd
law undoubtedly the custom prevails. But to be valid a custom must
be ancient, certain and reasonable, and being in derogation of the
general rules of law must be construed strictiy. A right in the nature
of a profit a prendre in the exercise of which the residents of a. locality are entitled to excavate stone for trade purposes would ex-facie
313
314
SUPREME COURT REPORTS
(1968) l 8.C.R.
be unreasonable, because the eixercise of such a right ordinarily
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tends to the complete destruction of the subject matter of the profit.
The custom, if exercised in its amplitude as claimed may also lead
to breaches of the peace, for it would be ,open to' all tenants to
work any quarry $imultaneously for trade purposes. [321B-D; 324D]
Lord Rivers v. Adams, L.R.3 Ex. Div. 361. Harris & Anr. v.
Ear! of Chesterfield and Anr., [1911] A.C. 623, A!fred F. Beckett
B
Ltd. v. Lyons (1967) I All E.R. 833, referred to
Lutchhmeeput Singh v. Sadaulla Nushyo & Ors., I.L.R. 9 Cal. 698
and Arjun Kaibarta v. Manoranjan De Bhoumick, I.L.&. 61 Cal. 45,
>:pproved.
Henry Goodman v. The Mayor and Free Burgesses of the Borough of Saltash. 7 A.C. 633 and Mercer v. Denne, [1904] 2 Ch. D,
534, 557 distinguished.
c
OVIL APPELLATE JURISDICTION: Civil Appeals Nos. 147 &
148 of 1966.
Appeals from the judg

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STATE OF BIHAR & ORS.
v.
SUBODH GOPAL BOSE & ANR.
August 22, 1967
(J. C. SHAH AND S: M. SIKRI, JJ,J
Bihar Tenancy Act, 1885, s.102-Custom-sneets prepared underRight of tenants of Lower Murli Hill (Shahabad District) to quarry
limestone fo1' trade purposes whether supported by said custom
sheets-Right whether could be claimed as a profit a prendre or customary easement-Riuht m¥St be reasonable to be accepted.
Respondent No. l acquired tenancy rights in five plots in the
villages of Biknaur and Samahuta situated in the area known as
Lower Murli Hill in District Shahabad;-Bihar. In 1949 he filed a
plaint in the Court of the Subordinate Judge Sasaram, against the
State of Bihar and others, claiming inter alia that as a tenant he had
a customary right to quarry limestone for trade purposes from the
Lower Murli Hill. The claim was based mainly on certain entries in
the Custom-sheets prepared at the time of the Cadastral Survey in
1913 under s. 102 of the Bihar Tenancy Act, 1885. The trial court rejected the claim but the High Court held the custom to be established by the evidence of the Customs-sheets. The defendants appealed.
HeldH The High Court was in error in holding that the plaintiff had established the custom pleaded by him or that it was reasonable.
(i) There was nothing to show that the practices and privileges
recorded in the Custom-Sheets were exercised as a matter of right.
The record has presumptive value. But the revenue authorities were
concerned to ascertain the existing state of affairs and not to determine whether the practices and privileges were ancient, certain,
reasonable and continuous. As evidence of local custom, the custom
sheets had therefore not much value. On the other hand there were
indications that the exercise of the privileges recorded therein was
permissive. Even on the most liberal interpretation they did not provide evidence of the exercise of the privilege of commercial exploitation of limestone from the area in question. [317D; 319G]
(ii) Even granting that the Custom-sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta excavated stones from the hills near the villages for purposes of trade,
a claim of right founded on that custom must be held unreasonable
and incapable of enforcement by the sanction of a court's verdict.
[320BJ
A clllim in the nature of a profit a prendre operating. in favour
of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid
custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a focality are entitled · to exercise
specific rights against certain other porsons or property in the same
locality. To the extent to which it is inconsistent with U>e generd
law undoubtedly the custom prevails. But to be valid a custom must
be ancient, certain and reasonable, and being in derogation of the
general rules of law must be construed strictiy. A right in the nature
of a profit a prendre in the exercise of which the residents of a. locality are entitled to excavate stone for trade purposes would ex-facie
313
314
SUPREME COURT REPORTS
(1968) l 8.C.R.
be unreasonable, because the eixercise of such a right ordinarily
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tends to the complete destruction of the subject matter of the profit.
The custom, if exercised in its amplitude as claimed may also lead
to breaches of the peace, for it would be ,open to' all tenants to
work any quarry $imultaneously for trade purposes. [321B-D; 324D]
Lord Rivers v. Adams, L.R.3 Ex. Div. 361. Harris & Anr. v.
Ear! of Chesterfield and Anr., [1911] A.C. 623, A!fred F. Beckett
B
Ltd. v. Lyons (1967) I All E.R. 833, referred to
Lutchhmeeput Singh v. Sadaulla Nushyo & Ors., I.L.R. 9 Cal. 698
and Arjun Kaibarta v. Manoranjan De Bhoumick, I.L.&. 61 Cal. 45,
>:pproved.
Henry Goodman v. The Mayor and Free Burgesses of the Borough of Saltash. 7 A.C. 633 and Mercer v. Denne, [1904] 2 Ch. D,
534, 557 distinguished.
c
OVIL APPELLATE JURISDICTION: Civil Appeals Nos. 147 &
148 of 1966.
Appeals from the judgment and decree dated November 15,
1960 of the Patna High Court in Appeal from Original Decree No.
212 of 1961.
D. P. Singh, K. M. K. Nair and S. P. Singh, for the appelD
!ants (in C.A. No. 147 of 1966) and respondent No. 2 (in C.A.
No. 148 of 1966).
A. K. Sen, K. K. Sinha and R. P. Katriar, for the appellant
(in C.A. No. 148 of 1966).
S. T. Desai, R. Chaudhuri, P. K. Chatterjee and Arun Chandra
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Mitra, for respondent No. I (in both the appeals).
The Judgment of the Court was delivered by
Shah, J. Subodh Gopal Bose-hereinafter called 'the plaintiff'
-commenced an action in the Court of the Subordinate Judge,
Sasaram, against four defendants-the State of Bihar, the Collector
of Shahabad, the Additional Sub-Divisional Officer Sasaram, and 1
Dalmia Jain & Company Ltd.,-for a decree declaring that he was
entitled to quarry limestone for trade purposes from the Murli Hills
described in the Schedule annexed to the plaint, and for an injunction restraining the defendants from dispossessing the plaintiff or
granting a lease of the land to any other person. In the Schedule,
the two properties in respect of which relief was claimed were : (i)
the Upper Murli Hill admeasuring 137 acres together with subsoil
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and mineral rights situate in parga11a1 Rohtas bearing Touzi No.
4769 Tahsil Circle Sasaram, and (ii) the Lower Murli Hill comprising an area of 250 bighas within the Banskati Mahal together with
the surface, subsoil and mineral rights situate in pargana Rohtas,
Touzi No. 4771 Tahsil Circle Sasaram. The trial Court dismissed
the suit. In appeal the High Court of Patna modified the decree
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passed by the trial Court and declared that the plaintiff was entitl:
ed to quarry limestone for trade purposes from the Lower Murh
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DIHAA V. S.G. DOSE (SlUJ/i, J.)
315
Hill, "subject to the right which the owner of the Bansk«ti Mahal
had therein as set out in the judgment", and restrained the defendants by a pennanent injunction from dispossessing the plaintiff
from the Lower Murli Hill described in the Schedule annexed to
the plaint. With certificate granted by the High Court, the State
of Bihar and. the Dalmia Jain and Company Ltd. have separately
appealed.
By his plaint the plaintiff claimed that he was a tenant in possession of 250 bighas of land of the "Lower Murli Hill" within the
Banskati Mahal and that he was in possession of the Upper Murli
Hill as the local agent of the Kuchwar Company which held leases
for twenty years from April l, 1928 to March 31, 1948, for quarrying limestone and that under the covenant for renewal in the said
leases, the Kuchwar Company had remained in possession of the
upper Murli Hill and the State of Bihar had accepted rent from the
Company and had otherwise assented to the Company remaining
in possession. The plaintiff also claimed that by immemorial custom and usaie recognized by the survey authorities the plaintiff as
a tenant of land within the Banskati Mahal had a right to quarry and
remove limestone for trade purposes. The Court of First Instance
held that at the date of the suit, the plaintiff was in occupation of
250 bighas of land in the Lower Murli Hill, but he was proved to
have derived tenancy rights from the Zamindar only in respect of
plot No. 168 of Baknaur and plots Nos. 42, 128, 130 and 44 of
Samahuta. The Court further held that 32.50 acres out of plot
No. 44 of Samahuta were acquired for the Dehri-Rohtas Light
Railway Company and the plaintiff's right derived from the
Zamindar was pro tanto extinguished. The Court also held that
the lease in favour of the Kuchwar Company was not renewed,
that the customary right to excavate minerals for trade purposes
claimed by the plaintiff in the Lower Murli Hill was not proved,
that the minerals in the Lower and Upper Murli Hill were vested
in the State of Bihar and the plaintiff was merely a licensee from
the State in respect of the Upper Murli Hill and was not a tenant
holding over. In appeal to the High Court of Patna the claim to
excavate minerals from the Upper Murli Hill was not pressed by
the plaintiff. It was also conceded by the plaintiff that he was, as
found by the trial Court, a tenant from the Zamindar only of
five plots one in Baknaur and the other four in Samahuta. · The
finding that at the date of the suit, the plaintiff was in occupation of 250 bighas of land was not challenged on behalf of the
defendants. In the view of the High Court the right to the minerals
in the Lower Murli Hill vested in the Zamindar and not in the
State, and the Banskati right was merely an incorporeal right to
levy tax on the removal of "various spontaneous products and
minerals, and did not extend to a right of ownership in the products and the minerals." The High Court also held that the custom
pleaded by the plaintiff of the right to take for trade purposes
limestone from the quarries within the Banskati Mahal was prov·
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SUPllEllE COURT REPORTS
[1968] I s.0.11.
ed. The High Court confirmed the decree passed by the trial
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Court insofar as it related to the claim to excavate limestone from
the Upper Murli Hill and decreed' the claim for a declaration that
the plaintiff had the right to quarry limestone and manufacture
lime from the Lower Murli Hill and to carry on trade in lime·
stone, "subject to the right which the owner of the Banskati Mahal
had of levying duty on the products removed", and for an injuncB
tion restraining the defendants from interfering with the plaintiff's
possession of the Lower Murli Hill.
(His Lordship after discussing the evidence, held that "lt ii;
sufficient to record that there is no evidence on the record of speci·
fie instances of the tenants of the villages having ever exercised the
right to exc.avate limestone from the slopes of the Lower Murli
Hill for domestic, agricultural or trade purposes" and proceeded):
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The High Court placed very strong reliance upon the entries
in the Custom-Sheet prepared under the Bihar Tenancy Act, 1885.
Section 102 of the Act, provides, inter a/ia.
"Where an order is made under section IOI, the particu·
Jars to be recorded shall be specified in the order, and may
include, either without or in addition to other particulars,
some or all of the following, namely: -
(h) the special conditions and incidents, if any, of the
tenancy."
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At the Cadastral Survey which was completed in 1913. a record of
cusfoms and practices was prepared. Exhibits II, I !(a) and 11 (b)
are the "Custom-Sheets" in respect of the three villages-Baknaur,
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Samahuta and Murli Hill (Upper Murli Hill). In respect of the vii·
!ages Baknaur and Upper Murli Hill the Custom-Sheets are in the
form of questions and answers. Questions 12 & 13 and the answers
thereto in the Custom-Sheet of Baknaur may be set out: -
"12. Whether or not the raiOn obtaining free pass they can
yats have any right to
bring (stone) for constructake away stone, if there
tion of house and well.
is one, what is that?
13. Whether the raiyats have
any right to take away
lime, lac, or any other
forest product. If they
have one, what is that?
They can prepare lime for cultivation work from the forests
in the Mahal. Nothing is
realiaed for it. If they prepare lime for sale purposes,
fee is realised according to
Schedule vide
Memo.
No.
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270 dated 14-12-1904; and lac
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jungle is made settlement."
By the Schedule of fees, "stone chips" were ch.argeable at rates
varying between -/ 4 / 4 and ·fl fl per ton and big stones fo~ con·
struction of houses were chargeable at the rate of Rs. 1/21· per
hundred. In Ext. l l(b) relating to the Upper .M~rli Hill in ~nsw7r
to question No. 12 it was recorded that the Hill has been !!!Ven m
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settlement i.e. in thika; " only the tenants can get stone chips from
the Hill. In answer to Question No. 13 it was recorded that "the
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BJ.B.411 ti, S.G. BOBll (Shah, J.)
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basti is unpopulated: the Hill has been let out in settlement: tho
people of the village cannot prepare lime from the Hill ol this
Mauza, but they can prepare lime from the Hill of other Mauzas
of this Mahal for cultivation purposes." In Ext. II (a) which relates to the village Samahuta, the relevant entries which are in narrative form are as follows: -
"The residents take away stones for constructing houses
and wells and prepare lime for their personal use without
paYing any fee and for sale they pay fees according to the
rates entered in the Schedule.
Thika settlement is made in respect of lac."
Relying upon these entries the High Court held that the right to
trade in limestone was vested by custom in the tenants in the Banskati Mahal. We are unable to accept this interpretation of the
Custom-Sheets. The record is merely a catalogue of practices and
privileges of the tenants in the villages within the Banskati Mahal;
there is nothing to show that it was recorded that the practices and
privileges were exercised as a matter of right by the villagers. Undoubtedly the record has presumptive value. But the revenue authorities were concerned to ascertain the existing state of affairs
and not to determine whether the practices and privileges were
ancient, certain, reasonable and continuous. As evidence of local
custom, the custom-sheets have therefore not much value. There
are again inherent indications in the custom-sheets that the exercise of the privileges recorded therein was permissive.
Harbans Rai-descendant of Raja Shah Mal-had imposed
duties on the removal of forest produce and the minerals. There is
no record of the nature of the duties imposed in the days of Harbans
Rai and of exemptions, if any. The entries in the custom-sheets
indicate that the forest produce and minerals taken by the tenants
in the village were subject to certain duties. Imposition of tluties
upon forest produce and minerals was evidently in exercise of signorial rights. In the custom-sheets of the villages
Baknaur and
Samahuta it is recorded that the tenants "take minerals and forest
produce" for domestic arid agricultural purposes, but if they pri>-
pare lime for sale they have to pay duties. Recognition of the
practice of taking stone and' forest produce for domestic purposes
without payment of duty is easily explained. In a predominantly
agricultural community it would have been regarded· as churlish,
for the Zamindar who was for all practical purposes the local representative of the Ruler to deny to the tenants of lands the facility of taking articles ol small value for domestic or agricultural
purposes. Acceptance of liability to pay duties on forest produce
and minerals taken for purposes other than domestic or agricultural, is destructive of the claim of a right to take the articles: it indicates that the removal was permissive being only on payment of
duty. The custom-sheet of the Upper Murli Hill recites that because
the Hill had been let out the tenants cannot prepare lime from
LISIJSCI-7
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SUPIUllll.J: COURT RBPORTS
[1968] ] S.0.1'·
the Hill of the Mauza lends strong support to that view. Again the
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recitals in Exts. 11 and 11 (a) that a thika settlement was made in
respect of "lac" .also leads tt> that inference: it clearly implies that
the tenants could not take "lac" from the forest because of the
grant of a thika contract. The evidence therefore shows that even
the practices recorded in the custom-sheets were followed so long
as the Government had not disposed of the corpus in favour of
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the contractors. The duties set out in the Schedules to the CustomSheets are also not shown to be permanently fixed. The Schtdule
of fees mentioned in the Custom-Sheets was apparently published
on December 14, 1904, and there is no evidence that it was merely
a record of fees levied since the days of Harbans Rai. From the
answer to question No. 4 in the Custom-Sheets it appears thaJt the
Government had treated the forest as a protected forest under a c
notification dated June 30, 1909, and that implies that restrictions
were imposed upon the taking and disposal of forest produce. The
report dated December 17, 1909 by Jagdum Sahai-a Revenue Officer-that "as the custom throughout the Rohtas Pargana has been
that the Zamindars and the cultivators and raiyats in all the villages in which the Government had its Banskati rights could take
free. of Government duty any quantity of timber, lime and stone
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etc. for their domestic and agricultural purposes within the limits
of their own village, it was difficult to prevent or check the people
of Samahuta Guimain, and Baknaur from entering into the pure
Khas Mahal portion of this Hill to which they had no right for
want of. distinct marks of its boundary", does not even by implication support a right to take forest produce and limestone for trade
purposes.
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The record of customs and practices is in respect of Banskali
Mahal and the area which originally extended over 500 sq. miles,
was later reduced to 200 sq. miles, and consisted of 108 villages.
The Custdm-Sheets recorded that the villagers were accustomed to
take dry wood, timber and bamboo for agricultural purposes and
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for construction of houses and that was permitted free of charge.
Assuming that a customary right in that behalf is established, removal of forest produce for other purposes with permits and on
payment of duty fixed by the authorities cannot be said to be in
exercise of a right. The e1>nditions of obtaining permit and . payment of fee for removal of the forest produce and limestone for
purposes other than domestic and agricultural indicate that the
removal was not as of right, but depended upon the sanction of
the authorities in whom the right to the Banska/i was vested. In
Ext. 11 (a) the privilege recorded is of "residents" to take away
stones for constructing houses and wells and prepare lime for
therr personal use without paying any fee, and for sale they had to
pay fees according to the rates entered in the Schedule. Granting
that the expression "residents" means tenants, if the privilege to
take forest produce and stone is being subject to conilitions of
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obtaining permits and payment of fee it cannot be regarded as a
right enforceable against the State.
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BIBAR v . . s.G. BOBE (Sl1ah, J.)
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In the plaint it was claimed that by immemorial custom and
usage, the tenants in the Banskati Mahal had a right t'o quarry and
remove limestone and manufacture lime from the quarries and
hills within the Mahal. The plea apparently was, that all tenanti
within the Banskati Mahal had the right to quarry and remove
limestone and manufacture lime from all the limestone quarries
and Hills within the Maha! and to carry on trade therein. Counsel
for the plaintiff in this Court did not press for acceptance of this
somewhat audacious claim and conceded that the right which the
plaintiff merely claimed, notwithstanding the unguarded phrase<>-
logy used in the plaint, was that :
"a tenant of a village within Banskati Mahal is "entitled under customary law to carry on quarrying operations for trade purposes on any forest (waste land) of the
village irrespective of whether" he is "a tenant in respect of
. such forest land or not."
Counsel said that the right claimed by the plaintiff 1s exercisable
only by tenants in the quarries and' hills in their village and belonging to the Zamindar and not in other villages of the Banskati
Mahal. This case was not pleaded in the plaint.
Even if it be
assumed that the plaintiff intended to set up a right not as euensive
as it was pleaded, and intended to restr~ct it only to the quarries
and hills of the Zamindar in the village· in which the tenant claiming the right resided, in out judgment, a customary right to
quarry stone out of the Lower Murli Hill and to manufacture lime
from limestone for trade proposes is not supported by the custom-
!lheets.
We are not concerned in this case with the privilege of the
tenan!S of taking for agricultural or domestic purposes pieces of
stones either lying on the surface or even underneath the surface.
Whether that would amount to a customary
r~ht enforceable
against the owner of the surface and the minerals is a matter on
which we do not feel called upon to express any opinion. The
privilege ~f .taking limest?~e for domes?c a~d agricultural purposes
is oi;ie privilege : the pnvilege of takmg lunestone for mamifacturing lime by an agriclllturist, even if it be for sale, with his
primitive methods is another privilege, and the privilege of commercial exploitation of more than a hundred thousand tons of
limestone a year to be extracted out of the Lower Murli Hill with
t~e aid ?f machin~ry is quite a different privilege and even the most
hberal mterpretation of the custom-sheets will not be evidence of
the exercise or grant of the last privilege. Therefore, the customary
right pleaded in the plaint that every tenant of any land covered ,
by the .Banskat~ ~aha! was ~ntitled to take limes~one out of any :
quarry many hill m Banska11 Mahal and to trade m stone or lime
manufactured out of the limestone is not supported by instances
L/86SCI-7{•)
320
SUPREME COURT REPORTs
[1968j l S.O.R,
of exercise of such right and is not supported by the entries in the
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Custom-Sheets. The entries in the Custom.Sheets contain on the
other hand strong indications to the contrary.
Even granting that the Custom-Sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta
excavated stones from the hills near their villages for purposes of
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trade, a claim of right founded on that custom must be held unreasonable and incapable of enforcement by the sanction of a
Court's verdict. The right exercisable by the tenants in the vii·
lages to excavate limestone for trade purposes was not claimed by
the plaintiff as an easement: it could not be so claimed, for it is
not a right which the owner or occupier of certain land possesses
as such, for the beneficial enjoyment of that land, to do and con· C
tip.ue to do something, or to prevent and continue to prevent something being done, in, or upon, or in respect of, certain other land
not his own: Section 4 of the Indian Easements Act, 5 of 1882.
The Indian Easements Adi no doubt makes no distinction for the
purpose of acquisition by prescription between the right of easement strictly so-called and the right which under the English common law is called a profit-a-prendre. By the Explanation to s. 4 D
the expression ''to do something" include& removal and appropriation by the dominant owner, for the beneficial enjoyment of the
dominant heritage, of any part of the soil of ,the servient heritage,
or anything growing or subsisting thereon. A profit-a-prendre is
therefore included in the definition of "easement" !n s. 4 of the
Indian Easements Act. But an easement being a right which is
super-added to the ordinary common law incidents of the owner·
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1 ship of a dominant tenement, and which connotes a corresponding burden on a servient tenement, can only be created by grant,
or by statute. An apparent exception to this rule is a customary
easement. But a customary easement is not an easement in the
true sense of that expression. It is not annexed to the ownership
of a dominant tenement, and it is not exercisable for
the more beneficial enjoyment of the dominant tenement·
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it is recognised and enforced as a part of the common
law of the locality where it obtains. A customary easement arises in favour of an indeterminate· class of persons such
as residents of a locality or members of a certain community, and
though not necessarily annexed to the ownership of land, it is en·
forceable as a right to do and continue to do something upon
land or as a right to prevent and continue to prevent something
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being done upon land. Sanction for its enforceability being in
custom, the right must satisfy all the tests which a local custom for
recognition by courts must satisfy.
A profit·a-prendre in gross-that is a right exercisable by an
indeterminate body of persons to tiike something from the land B
of others, but not for the more beneficial enjo¥lllent of a1 dominant
tenement-is not an easement within the meamng of the Easements
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BIHAII II. S.G. BOSE (!Sliah, J.)
321
Act. To the claim of such a right, the Easements Act has no application. Section 2 of the Easements Act expressly provid~ that
nothing in the Act contained shall be deemed to affect, inter alia,
to derogate from any customary or other right (not being a license)
in or over immovable property which the Government, the public
or any person may possess irrespective of other immovable property. A claim in the nature of a profit-a-prendre operating in
favour of an indeterminate class of persons and arising out of a
local custom may be held enforceable only if it satisfies ~e tests
of a valid custom. A custom is a usage by virtue of which a class
of persons belonging to a defined section in a locality are entitled
to exercise specific rights against certain other persbns or property in the same locality. To the extent to which it is inconsistent
with the general law, undoubtedly the custom prevails. But to be
valid, a custom must be ancient, certain and reasonable, and being in .derogation of the general rules· of law must be construed
strictly. A right in the mrture of a profit-a-prendre in the exercise
of which the residents of locality are entitled to excavate
stones for trade purposes would ex facie
be unreasonable
because the exercise of such a right ordinarily tends to the complete destruction of the subject-matter of the profit. It is said in
Halsbury's Laws of England, 3rd Edn. Vol. 11, Art. 324 at p. 173:
·•If a right in alieno solo amounts to a profit a prendre it
cannot be claimed under an alleged custom; for no profit
a prendre and therefore no right of common can be
claimed by custom except in certain mining localities;
nor can there be a right to a profit a prendre in an undefined and fluctuating body of persons."
That view is supported by a considerable body of authority. In
. lord Rivers v. Adams (') it was held that the right claimed by
inhabitants of a parish to cut and carry away for use as fuel in
their own houses fagots or baskets bf the under-wood growing
upon a common belonging to the lord of the manor is a right to
a profit-a-prendre in the soil of another: such a right cannot exist
by custom, prescription, or grant, unless it be a Crown grant
which incorporates the inhabitants. The House of Lords in Harris
and Another v. Earl of Chesterfield and Another(') held that a
prescription in a que estate for a profit a prendre in alieno solo
without stint and for commercid purposes is unknown to the law.
In the case bf Harris and Another(') the freeholders in parishes
adjoining the river Wye were in the habit of fishing a non-tidal
portion of the river for centuries, openly, continuously, as bf
right and wi~hout interruption, not merely for sport or pleasure,
but commercially in order to sell the fish and make a living by
it. The riparian proprietbrs claiming to be owners of the bed of
the river brought an action of trespass irgainst the freeholders for
(1) L.R. 3 Ex. Div. 361.
(2) [1911] A.C. 623.
322
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[1968) 1 B.C.R.,
fishing. It was held by a majority of the House of Lords that the
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legal .origin for the right claimed by the freeholders could not be
presumed and that the action by the plaintiffs was maintainable.
In Lutchhmeeput Singh v. Sadaulla Nushyo and Others(')
a Division Bench of the Calcutta High Court accepted the principle in the case of Lord Rivers v. Adams('). In that case the
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plaintiff sought to restrain the defendants. from fishing in certain
bhils belonging to his Zamindar. The defendants pleaded inter
alia that they had a prescriptive right to fish in the bhils, under a
custom, according to which all the inhabitants of the Zamindari
had the right of fishing. It was held that no prescriptive right of
fishery had been acquired under s. 26 of the Limitation Act and
that the custom alleged could not, on the ground that it was unC
reasonable, be treated as valid.
Counsel for the plaintiff contended
that the present case
falls within the principle enunciated by the House of Lords in
Henry Goodman v. The Mayor and Free Burgesses of the Borough
of Saltash('). The facts in Henry Goodman's case(') were peculiar. A prescriptive right to a several oyster fishery in Ii navigable
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tidal river was proved to have been exercised from time immemorial by a borough corporation and its lessees without any qualification except t!lat the free . inhabitants of ancient tenements in
the borough had from times immemoriat without interruptio11,
and claiming as of right, exercised the privilege of dredging for
oysters in the locus in quo from the 2nd of February to Easter
Eve in each year, and of catching and carrying away the same
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without stint for sale and otherwise. This usage of the inhabitants
tended to the destruction of the fishery, and if continued would
destroy it. It was held by the House of Lords (Lord Blackburn
dissenting) that the claim of the inhabitants was not to a profit
a prendre in alieno solo; that a lawful origin for the usage ought
to be prC$Ullled if reasonably possible; and that the presumption
which ought to be drawn, as reasonable in law and probable in r
fact, was that the original grant to the corporation was subject to
a trust or condition in favour of the free inhabitants of ancient
tenements in the borough in accordance with the usage. The case
came before the Court of Common Pleas, as a special case on facts
stated, that the mayor and corporiition of Saltash as a corporation was the owner by prescriptive right of the bed and soil and
several oyster fishery in the estuary of the River Tamar, and that
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the free inhabitants of the ancient tenements in the borough of
Saltash had from time immemorial, without interruption and
claiming as of right, exercised the privilege of dredging for oysters
in the river. The House was called upon to reconcile two conflicting rights of the corporation to the several fisherv and of the fr~
inhabitants to take oysters. The House reconciled the rights by
H
(1) I.L.R. Cal. 698.
(2) L.R. 3 Ex. Div. 361.
(3) 7 AC. 633
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JlIBAR V. B.G. BOSE (Shah, J.)
323
holding that the grant to the corporation of the soil and the oyster
fishery, which must be taken to .have been a grant before legal
memory, was made by the Crown or the Duchy of Cornwall subject to a trust or condition binding on the grantee, the corporation, to allow the owners of ancient tenements within the borough
the limited right to dredge for oysters notwithstanding that the
right might lead to the destruction of the fishery. In Harris v. Earl
of Chesterfield('), Lord Ashbourne observed at p. 633, after referring to the judgment in Henry Goodman's case(') that:
"It was a splendid effort of equitable imagination in furtherance of justice. The conception was reasonably possible and that sufficed."
In a recent case before the Court of Appeal in England :
Alfred F. Bei::kett Ltd. v. Lyons(') it wail observed by Harman
and Winn L.JJ., that the claim made on behalf of the inhabitants
of the County Palatine of Durham that they were entitled by custom of the locality to collect sea-borne coal from the foreshore
being a profit-a-prendre, a fluctuating body such as the inhabit·
ants of a county could not acquire by custom a right of that
nature.
Counsel for the plaintiff also relied upon the observations
made by Farwell, J., in Mercer v. Denne(') at p. 557, that the
period for determining whether a custom is reasonable or not is
its inception. In Mercer's case(') fishermen who were inhabitants
of the parish Waives were accustomed to spread their nets to dry
on the land of a· private owner at all times seasonable for fishing. In an action on behalf of the firshermen of the parish for a
declaration of right in terms of the custom and an injunction res- ·
training the owner of the land from building on or dealing with
the land so as to d'isturb the right of the fishermen, it was urged
by the defendant that the custom was unrea~onable,. because the
sea may recede for a mile or more, and it was impossible to suppose that any such extent of ground could ever have been intended
to be appropriated to such a custom. Farwell, J., observed that
as the event had not hllppened for upwards of 700 years, he could
not see the unreasonableness of it. He also observed that the period
for ascertaining whether a custom is reasonable or not is its inoept!on. Counsel for the plaintiff relying upon those observations submitted that if the custom in its inception was unreasonable, a more
extensive burden imposed by the exercise of the custom by the passage of time does not make it unreasonable. It is difficult in the
very nature of things to ascertain, especially under the English
law where proof by immemorial user must date back to the reign
of Richard I, i.e. 1189 A.O., the conditions existing at the inception of a custom, assuming that one can trace its inception. It is
(1) rrn111 A.C. 623.
.
(2) 7 A.C. 633.
(3) [1967] 1 All E.R. 833.
(4) [1904] 2 Ch. D. 534, 557.
au
IUPlllJl'.ll OOURT BBl'OllTS
fl968) l s.o ....
however, unneoessary to dilate upon that matter in this appeal; if A
by the exercise of ai customary right in favour of an indefinite body
of persons the property which is the subject-matter of the profit-aprendre is in danger of being destroyed the customary right will
not be recognised: Ariun Kaibarta v. Manoranian De Bhoumick('}.
Counsel for the plaintiff contended that the Court may ignore
the exaggerated claim appearing frt>m the averments in the plaint
and declare, relying upon the custom-sheets, a right to excavate
limestone and to utilise it for trade. purposes limited to the tenants
in the two villages. We are unable to accede to that request. In
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the present case the right to take "spontaneous produce of forest
and minerals" for domestic or agricultural purposes by the tenants c
is not in issue. What is in issue is the right claimable by all the
tenants of the two villages-even on the restricted interpretation
of the claim set up by counsel for the plaintiff-to excavate stone
from all lands in the village for trade purposes by installing
machinery. Such a custom would, if exercised in its amplitude
as claimed, may lead to breaches of the peace, for it would be open
to ali tenants to claim to work any quarry simultaneously for trade D
purposes, and may al!;o tend to the destruction of the subjectmatter. Such a custom would be unreasonable.
The High Court was, in our judgment, in error in holding that
the plaintiff had established the custom pleaded by him or that it
was reasonable.
The plaintiff had claimed in the plaint that he was at the
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date of the suit in possession of 250 bighas of land in the Lower
Murli Hill. The trial Court held that Ute plaintiff established
tenancy rights in respect of only five plots of land from the Zamindar-plot No. 168 in village Baknaur, and four plots Nos. 42,
44, 128 and 130 in village Samahuta. It does not appear that this
finding was ·challenged before the High Court. It is true that the
plaintiff claimed that he was in possession at the date of the suit
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of 250 bighas in the two villages of Baknaur and Samahuta and
it was so found by the trial Court and the finding was not challenged before the High Court either by the State or by the Dalmia
Jain & Co. Ltd. But that claim of possession was apparently
founded on the plea that the plaintiff was the representative of
the tenant holding over under the le$es granted by the State of
Bihar to the Kuchwar Company. It was held that the plaintiff's ocG
cu pa ti on of the lands was not as a tenant holding over. but was
merely permissive so long as no final decision was made by the
Government of Bihar on the application by the Kuchwar Company for renewal of the leases which had expired. After the
Government decided not to grant renewal of the leases, the
plaintiff had no right as an agent of the Kuchwar Company to
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. -.....,,__- ------· ----·--.
(!) I.L.R. 61 Cal. 45,
BIBAR II, S.G, BOSE (Shah, J,)
325
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remain in occupation of the lands. other than those in which he
had leasehold interest derived from the Zamindar. Counsel for
the plaintiff has therefore restricted his claim to an injunction
in respect of the land in which he establishes his interest as a
tenant from the Zamindar.
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The claim of the plaintiff to a declaration in respect of the area
of 32.50 acres of land out of plot No. 44 of Samahuta which was
acquired for the Dehri-Rohtas Light Railway Company between
the years 19.12 and 1917 remains to be considered. The right of
the Zamindar in the land together with all encumbrances in the
land acquired was extinguished when possession was taken by the
State in exercise of the authority of the Land Acquisition Act.
Thereafter no one could claim in that land title derived from the
Zamindar. 30.933 acres out of the land after it was transferred
by the acquiring authority to the Railway was leased out to the
Kuchwar Company and under a grant from the Kuchwar Company the plaintiff obtained the leasehold rights. The lease granted
by the Dehri-Rohtas Light Railway Company to Kuchwar
Company was
in the first
instance for one year, and
determinable by notice expiring with the end of the year.
It was the case of the State and of Dalmia Jain & Company
Ltd. that by a notice served by the Dehri-Rohtas Light Railway
Company uppn the Kuchwar Company the lease was determined.
The plaintiff contended at the trial that the notice was not received by the Kuchwar Company and therefore there was no determination of the lease. Manifestly the plaintiff cannot seek to enforce
his right to the land acquired from the Dehri-Rohtas Light Railway Company as a tenant from the Zamindar, and at the date
of the suit the plaintiff had no right in the land, fur the conveyance by the Kuchwar Company in favour of the plaintiff was executed several months after the date of the suit. Neither the Kuchwar Company nor the Dehri-Rohtas Light Railway Company is
on the record, and it would be impossible in the circumstances to
record any finding on the question whether the lease was terminated. But since the right of the Company was not transferred to
the plaintiff before the date of the suit, his claim for a declaration
of his right and for injunction restraining the defendants from interfering with his possession cannot be sustained. The plaintiff
as a tenant of the surface rights of the five plots of land in villages
Baknaur and Samahuta but excluding the area acquired for the
Dehri-Rohtas Light Railway Company is however entitled to protect his possession against unauthorised disturbance.
We accordingly modify the deoree passed by the High Court
and declare that the plaintiff has no right by custom to excavate
limestone for trade purposes out of the slopes of the Lower Murli
H
Hill or from any other land of the villages in Baknaur and Samahuta for trade purposes. The decree passed in favour of the plaintill
restraining the State of Bihar, its agents and servants. and the
326
SUPUlllli COURT UPOBTS
(1968] 1 s.o.a.
Dalmia Jain & Company Ltd. from interfering with the plaintiff's
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possession is maintained in respect of plot No. 168 of Baknaur
village and plots Nos. 42, 128, 130 and 44 (excluding the land
acquired for the Dehri-Rohtas Light Railway Compallly) of the
village Samahuta so long as the tenancy rights vested in the plaintiff are not lawfully detennined.
The appeals will accordingly be partially alllowed. In these
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appeals the plaintiff claimed primarily to enforce his customary
right to take valuable minerals from the Lower Murli Hill, and he
has failed to establish that right. The plaintiff will therefore pay
the costs tl:J the State of Bihar and the Dalmia Jain & Company
Ltd. throughout.