JUDGMENT : Das, J. - As the questions of fact and law involved in both the appeals and the relative cross-appeals are identical in nature, they are disposed of by this common judgment. The Appellants in both the appeals were Plaintiffs in the trial Court. 2. The disputed land in both the suits from part of plot No. 4() 8 in Khata No. 11/2 of Mouza Joranda in the ex State of Athgarh. It is the case of the Plaintiffs that the land was originally settled by the State with late Srinath Bidhyadhar Samant, father of Laxminath Samant pro forma Defendant No. 6 on rayati basis. Srinath and after him Laxminath were in possession of the said land. 00-8-10-1949 by two separate registered sale-deeds Laxminath sold different portions of plot No. 468 in favour of the Plaintiff in Title Suit Nos. 12 and 13 of 1960. It is the case of the Plaintiffs in both the suits that they continued to be in peaceful possession of their purchased portions of the land after putting ridges around the same and also made application for mutation of their names in place of Laxminath. In course of the said mutation proceeding some of the Defendants claiming to represent the villagers raised objection saying that the land is Bagayat land and the Plaintiffs cannot use the land for cultivation purposes. The villagers also called upon the Plaintiffs not to fence the land as it was being used by them as Gochar for grazing purposes. Thus, the Plaintiffs in both the suits have filed the Emits for declaration that the villagers have no right whatsoever in the said land and that they should he restrainer by permanent injunction from interfering with their possession. The procedure laid down in Order I, Rule 8, CPC was adopted in this case and the Defendants who appeared in the suit claimed to represent the interest of the villagers while contesting the claim of the Plaintiffs. 3. The main defence of the Defendants in both the suits was that the land was lying fallow and no trees were standing on the same. The Plaintiffs are entitled only to grow fruit bearing trees but had no right to cultivate any portion of the land. The land was recorded as a Bagayat, and it is a communal land which was being used as Gochar. The Plaintiffs are entitled only to grow fruit bearing trees but had no right to cultivate any portion of the land. The land was recorded as a Bagayat, and it is a communal land which was being used as Gochar. The villagers of the neighboring villages as also the Defendants have acquired a prescriptive right and also a customary right to use the land for grazing purposes for the cattle population of the village. Laxminath and the Plaintiffs in both the cases have entered into a collusion to deprive the villagers of their right to graze their cattle in the said land. 4. The learned Munsif upheld the right of the Plaintiff in accordance with the terms of the original lease which authorises Srinath only to grow fruit-bearing trees and not to cultivate the land for raising any crop. He held that the Plaintiff was entitled to place necessary fences in order to protect the fruit- bearing trees from being damaged by cattle or other animals. He rejected the defence case of acquisition of any customary or prescriptive right on the suit-land for grazing purposes and permanently restrained them from utilising the land for any such purpose. 5. On appeal the learned appellate Court upheld the right of the Plaintiff to grow fruit-bearing trees like mangoes, jack-fruits etc. but not banana or plantains as according to him banana cannot he classified as a fruit-bearing tree. He held that the villagers of Joranda, the village of the Defendants, have been using the suit-land as a pasture for grazing their cattle. To preserve both the rights he directed that the Plaintiffs would enclose each plant with a fence around it, thus leaving sufficient space in between so that the cattle of the villagers may graze on the available vacant land. He held that the Plaintiff would not be entitled to fence the entire land so as to deprive the villagers of their right to graze cattle on the land. He also restrained the Defendants from removing the enclosed fence or in any way interfering with the fruit-bearing plants grown on the land till they grew to the size of the trees, when the fences were no longer required. 6. As against this aforesaid decision of the learned Additional Subordinate Judge, the Plaintiff in both the suits has filed the present appeals and the Defendants have also filed separate cross-appeals. 7. 6. As against this aforesaid decision of the learned Additional Subordinate Judge, the Plaintiff in both the suits has filed the present appeals and the Defendants have also filed separate cross-appeals. 7. The short history of the land in dispute may briefly be stated here. The suit-land originally belonged to the ex-State of Athgarh and was recorded under the Raj Sarkar. In 1944, the land was settled by the Raj Sarkar in favour of Srinath Samant by a Nayabadi Patta. He was given the land on condition that he will use the land only to grow fruit-bearing trees. and would not cultivate the same. He cannot surrender the land to the State till expiry of ten years. In other words, the only right that was given to Srinath was one for growing fruit-bearing trees and not to convert the land for agricultural purposes. After merger, an attempt was made to convert the land for agricultural purposes, but that was refused by the revenue authorities. After purchase mutation (ext. 8 dated 11-5-1950 in T.S. No. 12/60 and ext. 6 dated 25-1-1950 in Title Suit No. 13/60) were made in favour of respective Plaintiffs on the very same conditions as given in the original lease by the State of Athgarh. It was specified in the remarks column of the mutation paper and in subsequent proceedings in 1960-61 that the land can on no account be used for any other purpose except as a bagayat In other words, the conditions that were attached at the time of settlement of the land by the Raj Sarkar in 1944 were allowed to continue even after merger and the only right that existed with Srinath and after him Laxminath and the Plaintiff is that they can grow fruit-bearing trees and enjoy the fruits but on no account can the Plaintiff cultivate the land and use it for agricultural purposes. The findings of both the courts are also to the effect that the land was not meant nor was used for any agricultural purposes, but was meant only to be used as I orchard to grow only fruit-bearing trees. These findings are well-supported by evidence and cannot be assailed. 8. The findings of both the courts are also to the effect that the land was not meant nor was used for any agricultural purposes, but was meant only to be used as I orchard to grow only fruit-bearing trees. These findings are well-supported by evidence and cannot be assailed. 8. With respect to the defence version, however, the findings of the Courts were at variance as to whether there was any customary or prescriptive right of grazing on the suit-land by the villagers of the Defendants or the neighboring villagers. The trial Court held that just because the land was lying fallow, it was being use for grazing purposes and nothing has been shown to establish that it, was as of right. He held that such a right is not supportable as a customary right as it is unreasonable in the sense that the Plaintiffs will be deprived of their right to grow trees if cattle are allowed to graze on the land. He accordingly said that the Plaintiff though are not entitled to cultivate the land can fence the land for protecting the trees. 9. The appellate Court on the other hand held that it is a peculiar feature of the bagayat land of Athgarh State that the villagers have a customary right in that State to graze cattle on the said lands. He held that the villagers had been exercising that right for about fifty years and such right cannot be interfered with by the Plaintiffs. With a view to maintain the rights of both parties he devised a measure by directing that the Plaintiffs may enclose each tree by fence and leave the intervening land for the use of the cattle of the villagers for grazing purposes. 10. The order of the learned appellate Court has given rise to these appeals and the cross-appeals. The main contention raised in the suits as also in the appeals is whether the Villagers of Joranda or the neighboring villagers have any customary right of grazing in the suit-land. No such right has been recognised in any of the settlement papers. It appears from record (ext. 5 in title Suit No. 12/60 and ext. 2 in Title Suit No. 13/60) that objections if any were invited from the villagers when the Nayabadi Patta of the suit-land was sought to be granted to Srinath Samant in 1944. No such right has been recognised in any of the settlement papers. It appears from record (ext. 5 in title Suit No. 12/60 and ext. 2 in Title Suit No. 13/60) that objections if any were invited from the villagers when the Nayabadi Patta of the suit-land was sought to be granted to Srinath Samant in 1944. No objection, however, appears to have been raised. It was contended by the Defendants and accepted by the appellate Court that there were about ten acres of land available for Gochar in 1944 as would appear from the Amin Report ext. 5 in T.S. 12/50. No serious objection was raised when the Nayabadi Patta for ten plots including the disputed plot No. 468 was granted to Srinath. The Khata (ext. D in T.S. 12/00) of Khata No. 227 shows that as early as in 1929 only 21/2 Gunths of land were recorded as Gochar though there were about forty-eight Mana of Bagayat lands. In view of the large number of cattle population and the smallness of the area of the recorded Gochar of 21/2 Gunths the learned appellate Court observed that: "The only answer seems to be that because in 1929 settlement only 2? Gunths were set apart as Gochar land it is quite likely that Bagayat land was being used partly as orchard land and the ground on which the trees stand was also used as Gochar by the villagers." The other material from which support was sought to be derived for this finding is that why public objections were invited for leasing out the land and why no right to cultivate the land was given to Srinath. There may be some force in these assumptions, but they are by no means conclusive. The objections might have been invited as a part of the general policy of the State. The small-ness of the Gochar land by itself is no ground to hold that the villagers had a right to graze cattle of the village on every available land. From the Khata it appears that there were about ten varieties of communal land such as Rasta, Pani Mahara etc. and Gochar forms only one of such species. The small-ness of the Gochar land by itself is no ground to hold that the villagers had a right to graze cattle of the village on every available land. From the Khata it appears that there were about ten varieties of communal land such as Rasta, Pani Mahara etc. and Gochar forms only one of such species. If it was the policy of the State that cattle of a village would be free to graze in all kinds of communal land, then there was no necessity to set apart some areas for Gochar and to record the same separately. The authorities obviously wanted to maintain the distinction between the various kinds of communal lands and not to treat all much lands as Gochar. This position appears to be clear from the later orders of the Sub-divisional Officer who has passed orders on 1-4-1950 saying that certain plot No. 424 under holding No. 227 recorded as bagayat should not be leased out in future but should hence forward be treated as Gochar. 11. Mr. Pal urged that all Bagayat lands like the disputed land are treated as communal land and the lessee of the said land has only a limited right to enjoy fruits on payment. No such condition has been laid down in the Nayabadi patta granted to Srinath, the only restriction imposed being that he cannot use the land for agricultural purposes. The policy of the State- at the time may be to encourage the growing of fruit-bearing trees wherever lands were available in preference to agriculture. It is difficult to speculate what exactly was the reason in imposing such a condition. Mr. Pal wanted to derive support from Ramadhyani's report Vol. III, page I, para II where it describes the Revenue History and settlement of Athgarh State. It says: Bagayat (orchard lands) were recorded in the name of the State and ryots who planted fruit-trees were to be allowed to enjoy the fruits on payment but in years of scarcity the State would distribute the fruits to the poorer villages. There is nothing, however, to suggest that the people of the locality will have a right of grazing on such bagayat lands. AU that it shows is that during the years of scarcity the Athgarh State would distribute the fruits to the poorer section of the villages. 12. There is nothing, however, to suggest that the people of the locality will have a right of grazing on such bagayat lands. AU that it shows is that during the years of scarcity the Athgarh State would distribute the fruits to the poorer section of the villages. 12. The Defendants have advanced a case of customary right to graze their cattle on the disputed land. It is well-settled that the onus of proof is on the party relying upon a custom to prove it. See a decision of the Privy Council reported in AIR 1926 91 (Privy Council) In their written statement the Defendants pleaded a right of pasturage not only for the villagers of Joranda, but also of the neighboring villages such as Hauratha and Indipur. In the written statement both prescriptive as well as customary rights were pleaded. At the stage of evidence, however, neither of the rights was specifically proved. Only some evidence of general nature was led to show that the land was lying fallow and the witnesses had been cattle grazing upon it stretching over several years without any objection being raised by anybody. D.w.1 has said that he has been seeing the cattle grazing on the disputed land since twenty or twenty-five years and d.w.3 has said that be has been seeing this for the last fifty years. The learned appellate Court took this evidence as sufficient to make out a case that the Defendants had the right of pasturage on the disputed land. No doubt, a customary right is available to a fluctuating body of persons such as a body of villagers, but a customary right which is in the nature of a public right and arises out of the custom of the locality, is a part of the law of the locality and is not a private right dependent upon grant, dedication or prescription. Here in this case, except the bare oral evidence of some of the witnesses on the defence side that cattle used to graze upon the suit-land without any objection from anybody, there is nothing else to show that the right of pasture claimed by them on the bagayat land is a part of the law of the locality. In support of the fact that it is a part of the law of the locality, reliance was placed on a passage in the Ramadhyani's report already referred to above. In support of the fact that it is a part of the law of the locality, reliance was placed on a passage in the Ramadhyani's report already referred to above. But as we have already seen neither in the record of rights nor in the report of Ramadhyani, there is anything to support the claim of the Defendants based upon any custom of the locality. 13. It was urged that all bagayat lands in Athgarh were treated as Gochar. It is, however, clear from the evidence of Defendant No. 2 himself that some of his villagers have purchased portions of the disputed plot even after the purchase of the Plaintiffs from other vendors. It also appears from his evidence that he filed an objection petition in the mutation case filed by the Plaintiff. In the said petition, however, he did not claim that the land was Gochar as would appear from his evidence given in the T.S. No. 13 of 1960. On the other hand his evidence reveals that he filed a petition in 1949-50 to set apart some land as Gochar of the village. It appears that the concerned Revenue Officer directed that a portion of plot No. 424 was to be set apart all Gochar. Assuming that the Defendants were using some of the bagayat lands of the State of Gochar, that itself will not vest them with any right of pasturage. It may be that the land was lying vacant and the villagers were grazing cattle without causing loss or inconvenience to anybody. 14. In a case reported in S. Chowdhury and Ors. v. Oazaddin and Ors. A.I.R 1937 Cal. 47, some swampy lands which remained unfit for cultivation were used by the inhabitants of an adjoining village for grazing their cattle for about forty years. When some parts of it subsequently became fit for cultivation and the owner let it for growing some crop, the villagers claimed the right of pasturage on the ground of custom, it was held that the circumstances were not sufficient to establish custom as the user was not reasonable as it permanently deprived the owner to cultivate his land. In a Division Bench decision of the Andhra Pradesh High Court reported in Pasupulati Krishnamurthi v. A. Panguayya and Ors. In a Division Bench decision of the Andhra Pradesh High Court reported in Pasupulati Krishnamurthi v. A. Panguayya and Ors. it was observed that a practice that has risen in comparatively recent years due to indulgence or tacit permission of the owner of the land, must be distinguished from a custom originating in the assertion of a legal right and a prolonged submission to or acceptance of the exercise of that right by those interested in disputing it. Vacant lands in a village are commonly used for purposes such as threshing or boiling and drying turmeric or for juvenile sporting without involving any invasion of the rights of the owner or the creation of rights in others who are tacitly allowed to use the land. Of course, no fixed period of enjoyment can be prescribed as necessary to prove a customary right claimed. In that case the land which was formally vacant was recorded as "Mandabayaul" in the remarks column of the revenue register. Their Lordships observed that that does not imply a grant of an easement right by the Government to the villagers or a dedication of the property as a cattle-stand or au engagement on the part of the Government not to assign or assess the land in future. The entry in the remarks column is merely descriptive of the land as a particular kind of poramboke and would not justify the inference of a customary easement of the Mandabayalu. Thus the mere fact that the disputed land was recorded as a Bagayat is no ground to justify the presumption that it was Gochar or even communal in character. To make out a case of customary right, it is necessary to prove that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality Gokal Chand v. Parvin Kumari ILR 9 Cal. 698. Further, one of the essentials of a valid custom is that it should be reasonable. In the present case the exercise of the right of pasturage will completely deprive the owner of his right to grow fruit-bearing trees as the invasion of an unlimited number of cattle is bound to destroy the plants. 698. Further, one of the essentials of a valid custom is that it should be reasonable. In the present case the exercise of the right of pasturage will completely deprive the owner of his right to grow fruit-bearing trees as the invasion of an unlimited number of cattle is bound to destroy the plants. In this view of the matter the customary right claimed by the Defendants must be held to be unreasonable as it will have the effect of the destruction of the property itself: Dutchmeeput Singh v. Sadaulla Nushavo ILR 9 Cal. 698 and Sheoraj v. Mudeen Khans ILR 57 All. 166. 15. In course of his judgment the learned appellate Court has further observed that the Plaintiff shall not be entitled to grow bananas as that does not come within the category of fruit-bearing trees. No dispute was raised between the parties as to the particular kinds of trees that the Plaintiffs were allowed to grow. All that the Nayabadi patta shows is that the Plaintiff was allowed to grow fruit-bearing trees. What are the kinds of fruit- bearing trees which the Plaintiffs were allowed to grow is a matter with which we are not concerned in this suit, and it was wholly unnecessary for the learned appellate Court in prohibiting the Plaintiffs from growing banana plants on the disputed land. The main question so far as the Defendants are concerned is if they had a customary right of pasturage on the disputed land. As I have said already, the Defendants on whom the onus lay have failed to prove the same. 16. In view of this position, the Plaintiffs-Appellants in both the cases are entitled to a decree for a permanent injunction against the Defendants both in their individual and representative capacities from exercising any right of pasturage on the suit-land and from interfering with the possession of the Plaintiffs. Both the appeals are accordingly allowed. 17. In both the cases the Defendants have filed cross appeals their main contention being that the trial Court should have allowed an unrestricted right of pasturage on the entire land and not merely on the plants. Both the appeals are accordingly allowed. 17. In both the cases the Defendants have filed cross appeals their main contention being that the trial Court should have allowed an unrestricted right of pasturage on the entire land and not merely on the plants. The other point raised is that the suit is incompetent as the State of Orissa on whom the land vests after the merger has not been made a party and even if any relief is given to the Plaintiffs, it would ultimately be infructuous as such a decree will not be binding on the State. 18. I have already held that the Defendants have failed to establish their customary right of pasturage on the disputed land and in that view of the matter the first contention raised in the cross-appeals must be rejected. With regard to the other contention though on issue on the question of non-joinder of parties was raised (issue No. 3) in both the suits, it was not pressed at the trial. The appellate Court before whom the question was raised rightly rejected the contention on the ground that the right claimed by the parties can be worked out even in the absence of the State. In the result, Second Appeals Nos. 300 and 301 of 1964 are allowed and the respective cross-appeals are dismissed. In view of the nature of controversy, the parties to bear their own costs throughout. Appeals allowed and cross appeals dismissed. Final Result : Dismissed