JUDGMENT V.K. Mehrotra, J. - This is a plaintiffs, Second Appeal. 2. The plaintiffs, who are muslims, filed the suit out of which the present appeal arises under Order 1, Rule 8, Civil P.C. claiming that the open piece of land bearing No. 2600 situate in Mohalla Mohd. Shahid pertaining to village Jaitpura, Pargana Dehat Amanat, district Varanasi as described at the foot of the plaint, was used for purposes of Namaz Janaza (funeral prayer before burying the dead) since time immemorial and that the respondent Nagar Mahapalika, defendant in the suit, be restrained from interfering with the rights of the plaintiffs and all the muslims of the locality in that regard. The plaintiffs alleged that after utilising part of the area for laying down paved street, the remaining part of the plot, which was the subject-matter of the suit, was likely to be put to use by the Mahapalika in a manner which would interfere with the rights of the muslims of the locality from using it for Namaz Janaza. 3. It is the plaintiff's case that a part of plot No. 2600 had been acquired by the Collector, Varanasi in the year 1910 for laying down what is known as Street Field Road. The plot in suit, according to the plaintiffs, alone was thereafter available to the muslims of the locality for Namaz Janaza as well as for other religious functions. The right to offer Namaz Janaza was claimed as a customary right. 3-A. The suit was contested by the Nagar Mahapalika. Amongst others, the plea taken by it was that the plot in suit was never used by the muslims of the locality for offering Namaz Janaza and that the plaintiffs or the muslims of the locality were neither in possession of the land nor were they using the same for purposes of holding religious functions as alleged. It was pleaded that the plot in suit was part of the land which had been acquired by the Collector, Varanasi in the year 1910 and that it was in possession of the Nagar Mahapalika ever thereafter. 4. The Civil Judge, Varanasi, who tried the suit, framed several issues on the pleading of the parties. Issue No. 3 was whether the plaintiffs have any customary right or have acquired any right of easement by user and lost grant over the land involved in the suit ? 4. The Civil Judge, Varanasi, who tried the suit, framed several issues on the pleading of the parties. Issue No. 3 was whether the plaintiffs have any customary right or have acquired any right of easement by user and lost grant over the land involved in the suit ? The learned civil Judge after noticing that the burden to prove existence of the customary right was on the plaintiffs, proceeded to consider the evidence of the parties. He felt that the documents which had been filed by the plaintiffs in support of their case were not relevant to the inquiry that was being made by him. He then proceeded to deal with the oral evidence of the parties and believed the testimony of the plaintiffs witnesses who had deposed to the existence of a customary right of offering Namaz Janaza, on the land in suit. The learned Judge also considered the testimony of the witnesses produced by the defendant at the trial. He found that some admissions made by these witnesses reinforced the plaintiff's case in regard to the land in suit being used for offering Namaz Janaza by the muslims of the locality. The trial Judge was however, of the opinion that apart from establishing that the muslims of the locality had acquired the customary right of offering Namaz Janaza on the land in suit, the evidence on record did not establish the existence of any other right in respect of the land in suit claimed by the plaintiffs. He, therefore, decreed the suit by declaring that the plaintiffs, and the muslim public of village Jaitpura had acquired the customary right to offer funeral prayer (Namaz Janaza) on the land in suit as delineated in the Amin's map (paper No. 50-C/2) which was directed to form part of the decree and by restraining the defendant Mahapalika by permanent injunction from interfering with the exercise of that right by the muslims of the locality and from putting the land in suit to such use as to substantially infringe with the reasonable exercise of that right. The Mahapalika assailed that decree in an appeal. 5. The lower appellate Court noticed the submission of the counsel for the Mahapalika before it, namely, that there was no customary right to offer Namaz Janaza on the land in suit and that the trial Judge had erred in giving a finding to that effect. The Mahapalika assailed that decree in an appeal. 5. The lower appellate Court noticed the submission of the counsel for the Mahapalika before it, namely, that there was no customary right to offer Namaz Janaza on the land in suit and that the trial Judge had erred in giving a finding to that effect. It posed the only question for determination to be as to whether the plaintiffs had acquired any customary right to offer Namaz Janaza on the land in suit. It dealt with the documentary evidence on record and, like the trial Court, came to the conclusion that it was not relevant to the fact in issue. It then proceeded to deal with the oral evidence adduced by the plaintiffs. It came to the conclusion that the plaintiffs had failed to prove the customary right of offering Namaz Janaza on the land in suit. Consequently, allowing the appeal, set aside the decree of the trial Court and dismissed the suit. Hence, the present Second Appeal. 6. After having heard learned counsel for the parties, it appears clear to me that the decree of the lower appellate Court cannot be upheld. 7. Where a right is claimed on the basis of custom, the burden of establishing it is upon the plaintiffs. Before the plaintiffs can claim a decree on that basis they have to establish that the custom claimed by them was immemorial in origin, reasonable, certain and continuous in nature and had been enjoyed as a matter of right. However, a finding as to whether on the facts appearing from the evidence, an inference of the existence of the custom can be drawn, would be a finding on a question of law. The conclusion about existence or otherwise of a custom on a certain set of fact established from the evidence led by the parties to the cause, is a conclusion on a question of law. See Girraj Singh v. Hargobind Sahai, (1910) 7 All LJR 36; Baba Narayan v. Saboosa, ( AIR 1943 PC 111 ); Lakshmidhar Misra v. Rangalal, ( AIR 1950 PC 56 ) and Chidambara v. T. Vedayya, ( AIR 1967 Mad 164 ). 8. See Girraj Singh v. Hargobind Sahai, (1910) 7 All LJR 36; Baba Narayan v. Saboosa, ( AIR 1943 PC 111 ); Lakshmidhar Misra v. Rangalal, ( AIR 1950 PC 56 ) and Chidambara v. T. Vedayya, ( AIR 1967 Mad 164 ). 8. A perusal of the judgment of the trial court shows that after noticing the legal ingredients necessary for establishing of a right claimed on the basis of custom, it proceeded to consider the evidence on record in the light of those principles. It considered not only the evidence of the plaintiffs but also of the defendant and, as mentioned earlier, took note of some admissions made by the witnesses of the defendant and eventually concluded that on the facts found to exist by it on the basis of the entire evidence on record, an inference of the existence of the customary right in the Muslims of the locality represented by the plaintiffs in the suit could legitimately be drawn. The lower appellate court, as would appear from its judgment under appeal however, did not advert to the testimony of the witnesses produced by the defendant-respondent at all. It only noticed the evidence of the witnesses produced by the plaintiffs and for grounds which, according to the learned counsel for the appellants, are not rational, rejected it. 9. Ostensibly, a finding in regard to the factual position recorded by the lower appellate court is one on a question of facts. It is, according to the submission of the learned counsel for the defendant, immune from challenge in a second appeal having regard to the nature of jurisdiction exercisable by the High Court when dealing with a matter under Section 100 C.P.C. However, where the finding has been arrived at, as in this case, by ignoring consideration of material evidence on record, the finding cannot be held to be sacrosanct. See Damadilal v. Parashram, ( AIR 1976 SC 2229 ). It was observed by the Supreme Court in that case, that it is well established that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law. The lower appellate court, as would be evident from a perusal of its judgment, has not rejected the evidence of the witnesses produced by the defendant on the ground that it is not relevant. The lower appellate court, as would be evident from a perusal of its judgment, has not rejected the evidence of the witnesses produced by the defendant on the ground that it is not relevant. It has, as noticed earlier, failed to consider it at all. The evidence furnished by the testimony of the witnesses produced by the defendant, even according to the learned counsel for the respondent, was relevant to the issue that was being tried between the parties. 10. The legal position in regard to the claim of a right based on custom has been laid down in the cases noticed earlier in this judgment. The proper course for the lower appellate court was to have examined the entire evidence on record with a view to find out whether the plaintiffs had succeeded in establishing a customary right of offering Namaz Janaza with reference to the legal requirements necessary for upholding such a right. It has failed to do so. 11. In view of the above discussion, it is clear that the decision of the lower appellate court is vitiated in law. The matter in the interest of justice, requires to be examined by it afresh in accordance with law. Since the case is to be heard again by the lower appellate court, I have refrained from making any observation in regard to the credibility or otherwise of the witnesses produced by the parties lest any such observation may prejudice either of the parties before the court below. 12. The appeal is allowed. The judgment and decree of the court below are set aside and the case sent back to it for decision afresh in accordance with law. The court below will dispose of the case, as far as possible within six months from the receipt by it of the record of this court which shall be sent back forthwith. The learned counsel for the parties have stated that the parties shall not take unnecessary adjournments to make it difficult for the court below to dispose of the appeal as aforesaid Costs shall abide the result. It would be open to the defendant-respondent to seek such interim protection from the court below as may be considered necessary by it.