Judgment :- 1. Many a legal battle in Courts is fought as part of man's fight for existence or attempts to better his prospects. But the fight in this case is for the right to bury the dead. The 1st plaintiff in O. S. No. 386 of 1966 on the file of the Munsiff, Perintalmanna is the appellant in this second appeal. The above suit was one for a permanent injunction to restrain the defendants and their agents from entering the plaint schedule property and burying dead bodies therein. The learned Munsiff found the plaintiffs' possession and decreed the suit as prayed for. The first plaintiff's title to plaint schedule property was not disputed by the defendants. From the judgment and decree of the learned Munsiff the defendants appealed to the Subordinate Judge, Mancheri. Learned Subordinate Judge came to the conclusion that the plaintiffs did not succeed in proving their possession on the date of suit and hence could not be entitled for the injunction prayed for. Accordingly, the learned Sub Judge allowed the defendants' appeal and dismissed the suit with costs throughout. It is against the above judgment and decree of the learned Sub Judge that the first plaintiff has come up in this second appeal. The question that arises for consideration in this second appeal is as to what exactly is the nature of the right of a section of the people of a locality to bury the dead in another's property. Can it be an easement or is it a customary right? 2. The plaint schedule property admittedly belonged to the tarwad of first plaintiff and in partition it was set apart to his tavazhi. The plaintiffs' case is that the property was orally entrusted to the 2nd plaintiff and he was cultivating the property with tapioca. Though the defendants were having no right whatsoever over the property, on 24 9-1965 the defendants and their supporters trespassed into the property, destroyed the tapioca cultivation and buried a dead body ignoring the resistance of the 2nd plaintiff. About this a complaint was filed before the local Magistrate as C. C. No. 418 of 1965 against the defendants which ended in their acquittal on 26101965.On 29-51966 the defendants again entered the property and buried the dead body of the mother of the 6th defendant ignoring the protests of the 2nd plaintiff who was in possession of the property. About this a complaint was filed before the local Magistrate as C. C. No. 418 of 1965 against the defendants which ended in their acquittal on 26101965.On 29-51966 the defendants again entered the property and buried the dead body of the mother of the 6th defendant ignoring the protests of the 2nd plaintiff who was in possession of the property. According to the plaintiffs, the property was never used as a burial ground and the defendants have no right over the property and hence the plaintiffs are entitled to a permanent injunction against the defendants. The case of the defendants is that the property is used by the harijans of the locality as a burial ground for the last 150 years and this is the only burial ground for the harijans of the locality. The tapioca cultivation of the 2nd plaintiff is a false story. The property is in the possession of the defendants. The allegation that the defendants on 29 41965 destroyed the tapioca cultivation is false. The criminal complaint filed against the defendants was dismissed after taking proper evidence. The allegation that the defendants have no easement right over the property is also denied by the defendants. 3. Shri T. R. Govinda Wariyar, learned counsel for the 1st plaintiff-appellant contends that there is a misdirection on the part of the court below regarding the question of law to be decided in the case. Learned counsel points out that the suit is one to restrain the defendants from entering the property and burying the dead there and the right set up by the defendants is to come to the property and do something there. Learned counsel further points out that the written statement was amended as per order on LA. No. 909 of 1968 dated 19-6-1968 to set up a right of easement and hence there is an admission of the plaintiffs' possession by implication. Learned counsel then contends that a right of easement is different from rights in gross and refers to the following passage on pages 99 and 100 on Law of Easements and Licences in India by B. B. Katiyar, 8th Edition. Learned counsel then contends that a right of easement is different from rights in gross and refers to the following passage on pages 99 and 100 on Law of Easements and Licences in India by B. B. Katiyar, 8th Edition. "One of the essential features of an easement is that it should be associated with two tenements or heritages, namely, the dominant tenement to which the right of easements is appurtenant and the servient tenement, in or upon or over which the right is exercised and a corresponding burden or obligation is imposed. There can be no right of easement without a dominant tenement and a servient tenement. Rights which are not claimed by b person as appurtenant to his land as dominant tenement, but by virtue of long user as a private right, or rights claimed by a community or class of persons by virtue of a custom and not as being appurtenant to any dominant tenement, are not easements, but are rights in gross and incapable of being acquired under the Act." Learned counsel points out that while customary rights are claimed by a fluctuating body of persons in respect of a particular locality an easement is claimed by a denned person for the beneficial enjoyment of a dominant tenement and arises from a grant express or implied from the prescriptive user. In the case of customary rights it is unnecessary to look out for their origin and they are also disallowed if they are unreasonable. Learned counsel contends that in this case a customary right is wrongly put forward as an easement. According to the learned counsel, as long as the plaintiffs' title is not disputed, it is immaterial whether possession is established or not. Learned counsel points out that the learned Sub Judge dismissed the suit on the ground that possession was not established, because of a misunderstanding about the scope of a suit like this. The learned Sub Judge has failed to note that the defendants only claim the right to bury the dead in the property and they don't claim any possession of the property. Learned counsel then refers to Lakshmidhar Misra v. Rangalal (AIR. 1950 P.C. 56) and contends that the point that arises for consideration in this case is concluded by the above decision of the Privy Council. In Lakshmidhar Misra v. Rangalal (AIR. Learned counsel then refers to Lakshmidhar Misra v. Rangalal (AIR. 1950 P.C. 56) and contends that the point that arises for consideration in this case is concluded by the above decision of the Privy Council. In Lakshmidhar Misra v. Rangalal (AIR. 1950 P.C. 56) also the dispute arose for consideration was the right of the inhabitants of a village to use a particular land as cremation ground. The Privy Council said: "In their Lordships' view, the true legal basis of such rights lies in custom. This is as much the case in India as it would be in England. Indeed this is the view which is fully set out in the judgment of B.K. Mukherjea J. in Asrabulla v. Kiamatulla AIR. (24) 1937 Cal. 245. A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large, Fitch v. Rawling, (1795) 2 H.Bl. 393. The custom, if established, makes the local law of the district and it creates a right in each of the inhabitants irrespective of his estate or interest in any particular property. The Courts of England have upheld many customs in different parts of the countryside which have had the effect of binding some piece of land to the perpetual service of the village or district. The claims so upheld are not different in any essential respect from the claim to the cremation ground in the village of Byree which is in question here. A custom for the inhabitants to dance upon a piece of ground for their recreation, (Abbot v. Weekly, I Levinz 176) : a custom to use a close for exercise and play at all kinds of lawful games, sports and pastimes, Fitch v. Rawling, (1795) H.Bl. 393 supra, a custom to enter upon certain land, erect a Maypole thereon and dance round about it, Hall v. Nottingham, (1876) 1 Ex. Dl: What the Courts have required of a custom, if the law is to uphold it as a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use. 393 supra, a custom to enter upon certain land, erect a Maypole thereon and dance round about it, Hall v. Nottingham, (1876) 1 Ex. Dl: What the Courts have required of a custom, if the law is to uphold it as a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use. It is by these tests that the appellants' claim in this case must be tried." In para 10 of the judgment the Privy Council further said: "But these differences bear upon the probability of any defined area of land being permanently reserved for cremation in a village: they do not destroy the legal possibility of such a reservation if the evidence supports it." In support of his contention, learned counsel also relies on Sheo Raj v. Mudur Khan (AIR. 1934 All. 868) wherein it is said that the fight to bury a dead body on another person's land may be acquired by grant or custom but not by prescription. Reliance is also made on Ramzan Momin v. Dasrath Raut (AIR 1953 Patna 138) wherein the Patna High Court said that the right of Mohammedans of a village to bury the dead in another man's land is a customary right which can be established by immemorial user. The court further held that if the rules of English law were to be applied, the defendants had acquired a customary right to bury their dead in the land and subject to this right the plaintiff was entitled to a declaration of his title and possession of the land. Learned counsel also points out that what the defendants claim can only be a customary right and in that case since there is no sufficient evidence in the case to prove the custom the case may go back to the trial court for fresh trial and disposal. 4. Shri M. V. Ibrahimkutty, learned counsel for the 3rd respondent, contends that there is no reason to interfere with the findings of the learned Sub Judge that the plaintiffs have not succeeded in proving their possession. According to the learned counsel, if the plaintiffs could not establish their possession of the property they cannot get an injunction and hence the learned Sub-Judge has not in any way gone wrong in dismissing the plaintiffs' suit for injunction. According to the learned counsel, if the plaintiffs could not establish their possession of the property they cannot get an injunction and hence the learned Sub-Judge has not in any way gone wrong in dismissing the plaintiffs' suit for injunction. Learned counsel further points out that the fate of a simple suit for injunction like this depends upon the possession of the plaintiffs. Learned counsel then contends that even if the right claimed by the defendants can be only a customary right there is evidence in this case that the harijans were burying the dead in the plaint schedule property for a considerably long period sufficient for establishing a custom. 5. In Mohidin v. Shivlingappa (I.L.R. 23 Bom. 666) dealing with a case where a certain section of the Mohammedan community had been for many years in the habit of burying their dead near a darga in plaintiff's land, and the plaintiff sued for an injunction restraining them from exercising this right in future the High Court of Bombay held: "The right of burial claimed by the defendants was not an easement, but a customary right, which being confined to a limited class of persons and a limited area of land, was sufficiently certain and reasonable to be recognised as a valid local custom." A right to bury the dead in the land of another claimed by a section of the inhabitants of a locality can only be a customary right. It is a right claimed by a fluctuating body of persons. It is a right claimed in respect of a particular locality. It is a right which does not arise from a grant. It is not a claim by a defined person. It is not a claim that arises from the beneficial enjoyment of a dominant tenement. So the right claimed cannot be an easement. If such a right is to be upheld by courts it 'should be immemorial in origin, certain and reasonable in nature and continuous in use'. In view of the peculiar nature of the rights involved, a finding on the question of actual possession of the property cannot turn the tables against any party. Though the defendants claimed it as an easement, it is not really an easement. Both the courts below have not looked at the question involved in the proper perspective. In view of the peculiar nature of the rights involved, a finding on the question of actual possession of the property cannot turn the tables against any party. Though the defendants claimed it as an easement, it is not really an easement. Both the courts below have not looked at the question involved in the proper perspective. As the right claimed is really a customary right, it is to be considered whether there is sufficient evidence to establish a custom. This aspect of the matter is also not adverted to by the courts below. So, in the interests of justice the case has to go back to the trial court.1 set aside the judgments and decrees of both the courts below and remand the case to the Munsiff, Perintalmanna for a fresh trial. 6. The second appeal is disposed of as above. Allowed.