JUDGMENT Chakravartti, J. - The suit out of which this appeal arises was brought by the Hindu inhabitants of Hazra-Para and Hengumia-Para, which appeared to be two wards of a village called Bania-chong, for a declaration of their title to cremate the bodies of their adult dead in the two plots of land mentioned in the schedule to the plaint and, in the case of deceased infants, to bury the dead bodies there. Certain ancillary reliefs were also asked lor. As usual in suits of this kind, after pleading immemorial user, the Plaintiffs based their right both on a presumed grant and custom, as also several other matters less precisely defined. The defence did not altogether deny the user of the land as alleged by the Plaintiffs. It was admitted in the written statement of one of the Defendants that such user had been going on since the Bengali year 1329. Further admissions came from the witnesses called by the Defendants themselves. The sole attempt of the Defendants seems to have been to reduce the. period of user and to establish that it had been permissive. 2. Both the Courts below have decreed the Plaintiffs' suit. They have found concurrently that the Hindu inhabitants of the two Paras have been exercising the right of burial and cremation on the two plots of land for at least the last 45 years continuously, publicly and as of right, without the permission of the owners of the plots. The trial Court on that finding held that the right claimed by the Plaintiff's must be declared on the basis of both a lost grant and custom. The lower Appellate Court, however, considered that the basis of a lost grant Was quite sufficient and it was not necessary to consider the question of the -acquisition of the right by custom. 3. In the present appeal on behalf of the Defendant it has been contended by Mr. Chatterjee that the lower Appellate Court was in error in holding that the right claimed by the Plaintiffs could be declared in their favour on the basis of a presumption of a lost grant. He contended that there could not be a grant in favour of the inhabitants of a certain place. 4. This contention, in my view, is plainly right. He contended that there could not be a grant in favour of the inhabitants of a certain place. 4. This contention, in my view, is plainly right. The principle underlying the doctrine of lost grant is that when a certain right is found to have been exercised for a long period of time without interruption to the derogation of the right of someone else, the law. instead of disturbing such possession, supposes for it the best beginning that the law can give. It is, therefore, presumed as a kind of fiction that although no legal origin of the user which has been established as a fact can directly he proved, it may legally be presumed that the origin lay in a grant made, but since it was made. lost. It is true that when the facts attract the doctrine of a lost grant, it is not permissible to give evidence to prove that such grant was never made, but the presumption cannot be drawn when it is clear that no grant could legally be made at all. In order that there could be a grant, it is necessary that there must have been a grantee capable of taking. Clearly the inhabitants of the village, who are an indeterminate and ascertainable body of persons, could not be grantees of any kind. This has been laid down in cases too numerous to mention, both in England and in India. It is sufficient for me to refer to the decision of a Division Bench of this Court in the case of Asrabulla v. Kianmatulla Haji Choudhury (1937) 41 C. W. N. 503. 5. The ground upon which the lower Appellate Court based its decision being an erroneous one, the next question is whether I should remand the case for the purpose of a re-hearing of the appeal on the question of custom. As I have stated already, the trial Court found in favour of the Plaintiffs on the ground of custom as well, but the lower Appellate Court did not consider this question at all. I think, however, that having regard to the elaborate character of the findings arrived at and recorded by both the Courts below, it is not necessary for me to order remand of the appeal; on the other hand, it would be legitimate for me to follow the course which Mr. Justice Jack followed in. I think, however, that having regard to the elaborate character of the findings arrived at and recorded by both the Courts below, it is not necessary for me to order remand of the appeal; on the other hand, it would be legitimate for me to follow the course which Mr. Justice Jack followed in. the case of Abdul Hosain v. Sadai Gobinda Deb (1938) 42 C. W. N. 1102, a case which was cited by Mr. Chatterjee himself. In that case too, the learned Judge held that the right there claimed by a fluctuating body of persons could not be supported on the basis of a lost grant. Nevertheless, he upheld the decree which had been made by the Court of Appeal below on the basis of a custom from the findings already recorded in the judgment under appeal. 6. In the present case, the two plots of land, in respect of which the custom is claimed to have been exercised, are precisely described. The nature of the right said to have been exercised is defined with equal precision. The persons, in the derogation of whose rights custom was exercised, are also certain and named. The three certainties which a valid custom requires are, therefore, all present. As regards the period over which the right has been exercised, the finding of the Courts below is that it has been exercise 1 at least for the space of 45 years. That period is quite sufficient to support the growth of a custom and it is not necessary to go further back in order to find immemorial user. 7. There remains, however, the question of reasonableness. Mr. Chatterjee argued with some plausibility that it could not be reasonable to invade somebody else's land and cremate or bury dead bodies there. Stated broadly in that fashion, that proposition would appear to be correct. But one has to judge the present case in the context of its own facts. The finding here is that the two plots of land are situated on two banks of an ancient tank which was excavated by someone at some date which is unknown. The banks of that tank, although they may have belonged to some one, were never brought under actual possession and were allowed to run wild and any one who chose might cut and remove the grass that grew thereon. The banks of that tank, although they may have belonged to some one, were never brought under actual possession and were allowed to run wild and any one who chose might cut and remove the grass that grew thereon. Here was apparently one of those old abandoned tanks, of which one sees so many in Bengal, and the abandoned banks of an abandoned tank. With respect to lands of this character, it cannot be said that if it is used for the purpose of cremating the dead bodies of the people of the locality, or for the burial of their dead infants, the custom would be unreasonable. There would really be no invasion of the right of property of any one, because whoever the real owner might be, did not obviously treat the property as an asset of his in any real sense. 8. Mr. Chatterjee also contended that the evidence showed that the right was not exercised by all the Hindu inhabitants of the two Paras, nor by them on all occasions. He referred specifically to the evidence to the effect that the Gopes of the place had their own cremation ground. He referred also to the fact that there is some evidence to the effect that only the bodies of those persons were burnt or cremated in the two plots of land of whom no memorial was desired to be kept. It is only necessary to point out with regard to this contention that a custom need not be universal nor compulsory. The fact that the people of a locality have and have enjoyed a custom does not mean that they are bound to exercise and follow it on every possible occasion and that if they do not do so on some occasions, the existence of the custom is negatived. In my opinion, the objections raised by Mr. Chatterjee are without substance. 9. Mr. Chatterjee also referred to a sentence occurring in the evidence of P. W. 1 which reads as follows: We are not cremating dead bodies in the disputed land after the purchase of Kalikishore Dhar. 10. Basing himself on this sentence of the evidence. Mr. Chatterjee contended that on the Plaintiffs' own admission the custom had been discontinued since the lands were purchased by Kalikishore Dhar. On a reference to the evidence, however, it appears that the sentence does not bear the meaning which Mr. 10. Basing himself on this sentence of the evidence. Mr. Chatterjee contended that on the Plaintiffs' own admission the custom had been discontinued since the lands were purchased by Kalikishore Dhar. On a reference to the evidence, however, it appears that the sentence does not bear the meaning which Mr. Chatterjee would attribute to it. It was stated in the written statement of one of the Defendants that the practice of cremation and burial had commenced only after the purchase by Kalikishore Dhar. The sentence which I have quoted is obviously an answer to a question put to the witness with reference to that statement of the defence. He was asked whether it was not a fact that the people of the locality had been cremating their dead bodies only since the purchase by Kalikishore Dhar and he replied in the negative. 11. With regard to this matter, I have only to add that it is quite futile o contend at this time of the day that the custom of cremation and burial is not one of a fairly ancient origin or that its exercise has been irregular and spasmodic. As both the Courts below have pointed out in their judgments, there is evidence coming from the side of the Defendants themselves that the custom has been in existence for at least 25 years. The admission contained in the statement has already been referred to. 12. On the findings which I have above referred to, it is, in my opinion, unnecessary to remand the appeal to the lower Appellate Court for a fresh finding on custom. As was pointed out in the decision of the Division Bench to which I have already referred, namely, the case of Asrabulla v. Kiamatulla Haji Choudhury (1937) 41 C. W. N. 503 after the facts have been found, a question of the existence or reasonableness of the custom is a question of law. It cannot, therefore, be improper to decide the question of law in second appeal. In my view, the evidence recorded by the Court below are quite sufficient to support their decree on the basis of a customary right, possessing all the incidents necessary to make it valid. 13. Mr. It cannot, therefore, be improper to decide the question of law in second appeal. In my view, the evidence recorded by the Court below are quite sufficient to support their decree on the basis of a customary right, possessing all the incidents necessary to make it valid. 13. Mr. Chatterjee, in the last place, complained of the form of the decree made by the trial Court: The decree, after declaring the right of the Plaintiffs, goes on to say that they will get possession in the disputed land as shown in the Commissioner's map for the purpose of cremating and burying their dead bodies therein. Mr. Chatterjee contended that even if the Plaintiffs were given a decree as respects the rights claimed by them, they would not thereby become owners of the two plots of land and a decree for possession in their favour was erroneous, or, at any rate, might prove misleading. I think, the Courts below have done all that was necessary to avoid a misleading impression by qualifying the order with the reservation that the possession of the Plaintiffs would be only for the purpose of cremating and burying dead bodies therein. Since the Plaintiffs were given a decree with regard to the entirety of the two plots of land, they were thereby declared entitled to exercise the right in every inch of the land. That being so, although the title of the land would remain with the Defendants, any user by them which would interfere with the exercise of the Plaintiffs' right, wherever they might choose to exercise it within the two plots, would be impossible. In the circumstances, I do not think that the decree gives the Plaintiffs anything more than they were entitled to. It is useful to notice that in the case of Jogesh Chandra Roy v. Niranjan De (1934) 49 C. W. N. 387 the owner of certain lands sued for khas possession against the persons who claimed a right of cremation therein and such right having been established, the owner's claim for khas possession was refused. The present case is a converse one, but the effect is obviously the same. For the reasons given above, the appeal fails and is dismissed. As, however, the Defendants had every reason to come up to this Court, I make no order as to costs against them.