JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Sri A.N. Bhargava, learned counsel for the appellant and Sri Madan Mohan Jain holding brief of Sri M.K. Gupta for the respondents. 2. This Second Appeal arises out of a representative suit filed by the residents of town Shahpur, District Muzaffarnagar under Order I, Rule 8, Code of Civil Procedure for permanent injunction restraining the defendants from demolishing the gate, stage and flags and interfering in the exercise of their rights, enjoyment and possession over the land in suit. The plaintiff pleaded customary rights over 9 Bighas and 8 Biswas land shown by letters A,B,C,D in the map given at the foot of the plaint. In the disputed land, there exists a gate, pucca stage, penth chabutra, two wells and two flags of the residents. According to the plaintiffs Hindu Community celebrates Ram Lila on the eve of Dushehra festival, and burns effigies since times immemorial. There exists a pacca chabutra for swangs. There is also penth which is held on the open land every week. The Jain community celebrates ‘Uchao’ ceremony every year and they have their flags and gate over the land in dispute. They celebrate ‘Bara Utsav’ and ‘Chhota Utsav’ on the land. In ‘Gokula Devi Fair’, the land in dispute is used for Swangs, Dramas and other musical and general activities. It is known as public Penth Wala Maidan’ and ‘Ram Lila Wala Maidan’. The custom is reasonable, certain ancient and enjoyed without interruption. The land is dedicated for public purposes. The defendant Nos. 1 and 2 were previous owners, whereas defendant Nos. 3 and 4 profess to derive their title through defendant Nos. 1 and 2 by a sale deed. Defendant Nos. 5 to 13 have been impleaded on their own applications as they wanted to contest the suit. 3. The defendant No. 1 admitted the customary rights over a portion of land. He executed sale deed to defendant Nos. 3 and 4 with full knowledge of the customary rights. Suit was contested by defendants No. 3 and 4. Defendant Nos. 5 to 23 did not file any written statement. 4. The defendant Nos. 3 and 4 filed joint statement denying acquisition of customary rights of the residents of the town on the land. They denied that Ram Lila, Swang, Dramas, Musical Functions or Kukula Devi fair have ever been held over the land in Suit. Defendant Nos. 5 to 23 did not file any written statement. 4. The defendant Nos. 3 and 4 filed joint statement denying acquisition of customary rights of the residents of the town on the land. They denied that Ram Lila, Swang, Dramas, Musical Functions or Kukula Devi fair have ever been held over the land in Suit. The ‘Chhao Function’ of the Jain community was held with the permission of the previous owner. About Ram Lila it was stated that it was never held. 5. The trial Court held that there was overwhelming oral evidence to prove the functions from times immaterial. The ‘Uchhao Festival’ was held for very long period of time and it has become a custom of the residents of Shahpur town to have these Utsav on. the land in dispute. The defendant No. 1 admitted that Ram Lila function was held over the land in dispute from times immaterial. The other witnesses also supported the plaintiff allegations. The trial Court has recorded finding that the theory that Ram Lila function is held from times immaterial has been established at the fullest. The customary right was proved to be continuous reasonable and certain. The findings of the trial Court, which decreed the Suit on 11.9.1964, are summarised as below : “In view of discussion above I hold that residents of Shahpur town have acquired a customary right to hold Ram Lila, Chhao and Gokula Devi fair over the land in dispute. They have not acquired any such rights regarding Swang, Dramas, Penth, Musical Activities and public functions over the land in dispute." 6. The appellate Court confirmed the findings. Paragraph 15 of the judgment of the appellate court is quoted as below : “15. Keeping in view the law laid down in the above rulings I find that the plaintiffs have succeeded in proving their case in respect of ‘Bara Utsav’ and ‘Chhota Utsav’ as well as in respect of Ram Leela and Gokula Devi fair and they have also succeeded in proving that they have acquired a customary right to hold the above functions on the entire land in dispute and not only a portion of the land as found by Shri R.C. Verma. The finding given by Shri Din Dayal in this connection was perfectly correct. The finding given by Shri Din Dayal in this connection was perfectly correct. Although I agree that he had not specified the period for which the plaintiffs had acquired a right to hold the above functions and which was required to be clarified in the decree passed by him." 7. The appellate Court also found from the documentary evidence namely pamphlets, newspaper cutting relating to the period from 1923 to 1963 that the land was being used for the purpose of holding Uchchao, Ram Lila and Gokula Devi fairs. Paper No. 16-A, 87-A (Exh. 18 and 19) referred to Gokula Devi fair was held in 1951 and 1955. 8. The appellate Court further found that these functions covered almost entire disputed land and that the plaintiffs have acquired customary rights in respect to entire land. While it was true that ‘Chhota Utsav’, ‘Bara Utsav’ and main function, were held in the south-western portion and in the south-west portion of the eastern gate and that Kanats and Shahmiana were fixed and durries were placed at the ground. The Civil Appeal No. 278 of 1964 was dismissed on 31.5.1974. Para 21 of the judgment and operation portion of the order of the appellate court is quoted as below : “21. In view of the above I would reject the objections filed by the defendants against the findings given by Shri R. C. Verma and would allow the objections filed by the plaintiffs and would hold that the plaintiffs had succeeded in proving that they had acquired a customary right to hold Ram Leela, Uchhao and Gokula Devi fair in respect of the entire disputed land, and that the custom was reasonable in respect of the entire area." “The appeal is dismissed with costs except that it is hereby mentioned by way of clarification that the plaintiffs and other residents of town Shahpur shall be entitled to enjoy the customary right of ‘Chhota Utsav’ on the Anant Chaudas day every year from noon time till the evening. The days of enjoyment for ‘Bara Utsav’ are to be ascertained astrologically with reference to the number of Tirthankar for which the Utsav is to take place. The dates should be got ascertained about one month in advance and intimated to the contesting defendants 3 and 4 so that they may keep the land clear on those dates. The days of enjoyment for ‘Bara Utsav’ are to be ascertained astrologically with reference to the number of Tirthankar for which the Utsav is to take place. The dates should be got ascertained about one month in advance and intimated to the contesting defendants 3 and 4 so that they may keep the land clear on those dates. The Ram Leela functions are to take place on five days viz. Asoj Badi 13. Asoj Sudi 1.3.5 and 10 every year from noon time till the evening. The enjoyment of customary rights with respect to Gokula Devi fair shall be confined to six days from Chait Sudi 9 up to Chait Sudi 14 every year. Contesting defendants 3 and 4 shall keep the entire disputed land clear on the due dates for the enjoyment of the aforesaid customary rights and they are restrained from interfering in the exercise of these customary rights by the Jain or Hindu residents of Shahpur. The contesting defendants shall continue to be owners in possession of the disputed land but their rights as such shall be subject to the enjoyment of the aforesaid customary rights by the residents of Shahpur town.” 9. Sri A.N. Bhargava, learned counsel for the appellant-defendant Nos. 3 and 4 has pressed the following substantial questions of law : (1) Whether on the land of appellant any customary rights of Chota Utsav and Bara Utsav and Gokula Devi as alleged would be granted. (2) Whether there being a small members of Jains living in comparison of other persons the customary right could be claimed. (3) Whether the plaintiff was able to prove that such a custom under the law was proved. (4) Whether the custom alleged was ancient, continuous of uniforms certainty, reasonableness and exercise as rights. (5) Whether the customary rights could be claimed on whole of the land in dispute while title was also asserted. (6) Whether the claim of plaintiff would be barred as there was no fresh suit objections being dismissed under Order XXI, Rule 58 of C.P.C.” 10. I find that in the present case only questions No. 1, 4 and 6 are relevant to be considered by the Court as substantial questions of law, and the Second Appeal was heard only on these questions. 11. Sri A.N. Bhargava requested for original record of the case. I find that in the present case only questions No. 1, 4 and 6 are relevant to be considered by the Court as substantial questions of law, and the Second Appeal was heard only on these questions. 11. Sri A.N. Bhargava requested for original record of the case. I do not find that the original record is necessary to decide the questions which are purely legal in nature. 12. The question, whether the claim of the plaintiff is barred as no fresh suit/objections could be filed under Order XXI, Rule 58 of C.P.C., need not detain the court as under Rule, 63, only those persons who are parties to the earlier suit were bound by the Rule, In the present case, the plaintiffs were not party to the previous suit. The suit giving rise to this Second Appeal, was filed under Order 1 Rule 8 of C.P.C. in representative capacity. 13. Sri Bhargava has laid great emphasis on the point that customary right cannot be accrued on such large piece of land. He, however, could not point out any such finding on record which may have confined to customary right to only a portion of the land. He, further, submits that the customary rights must be established to be arising from times immemorial, continuous, certain and reasonable and has relied upon judgments in Kuar Sen v. Mamman and others 1895 I.L.R. (Vol.17) 87, (para-7); Laxshmidhar Misra and others v. Rangalal and others, A.I.R. (37) 1950 PC 56 (para 7) Punabai w/o Mannuji v. Ramrao Balasaheb Dhote and others, AIR (37) 1950 Nag 54 (para 17); Abid Ali Khan and others v. Secretary of State and another, AIR (38) 1951 Nag 327, (para 63) and Jugal Kishore and others v. Umrao Singh and others, AIR (36) 1949 All. 272 (para-7 & 8). 14. In the present case, both the courts have clearly held that the land did not belong to plaintiffs and there is no permission granted by the then Zamindars or the defendant Nos. 1 and 2 for holding the fares. The land was used for a very long period of time for celebrating Ram Lila, Chhao and Gokula Devi fair. The right was exercised with certainty, without any interruption and thus the residents of the town acquired the customary rights over the disputed land. 15. 1 and 2 for holding the fares. The land was used for a very long period of time for celebrating Ram Lila, Chhao and Gokula Devi fair. The right was exercised with certainty, without any interruption and thus the residents of the town acquired the customary rights over the disputed land. 15. Relevant paragraphs of the judgment cited as above are quoted as below; (i) Kuar Sen v. Mamman and others, 1895(17) ILR 87 (para-7) “Section 18 of the Indian Easements Act, 1882 (Act No. V of 1882) leaves at large the question of law how a local custom may be established. As such a local custom as is how set up on behalf of the defendants excludes or limits the operation of the general rule of law that a proprietor or other person lawfully in the possession of land, and whose rights are not controlled or limited expressly or impliedly by Statute law, by grant, or by contract, has an exclusive right to the use or enjoyment of his land for all purposes not injurious to the rights of his neighbours, it is necessary that those setting up such a custom as that in the present case should be put to strict proof of the custom alleged by them.” (ii) Laxshmidhar Misra and others v. Rangalal and others, A.I.R. (37) 1950 PC 56 (para 7) “7. 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, A.I.R. (24) 1937 Cal. 245: (I.L.R. (1937) 2 Cal. 56). 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 HB. 393: (3 R.R. 425). 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 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, 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) 2 H.B. 393: (3 R.R. 425) supra, a custom to enter upon certain land, erect a Maypole thereon and dance round and about it, Hall v. Nottingham, (1876) 1 Ex. D. 1: (45 L.J. Ex. 50). 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.” (iii) Punabai w/o Mannuji v. Ramrao Balasaheb Dhote and others, AIR (37) 1950 Nag 54 (para 17): “From these three cases it is possible to deduce the well-established rules which govern such cases. A customary right to be effective need not be immemorial, but it should be sufficiently old to enable the Court to infer that it was recognised as governing the rights of the parties in derogation of the ordinary law. The customary right must be proved by clear and unambiguous evidence, showing a continuous user as of right necvi nec clam nec precario. It should not have been exercised by permission granted by the owner. The exercise of the right should be reasonable and certain in its extent. Above all, the manner of the exercise of the right should be such that it may be possible to infer that a customary right had grown and had been well recognised.” (iv) Abid All Khan and others v. Secretary of State and another, AIR (38) 1951 Nag 327, (para 63) : “63. A custom, in order that it may supersede the ordinary law, must, besides being reasonable, be ancient as well as certain. A custom, in order that it may supersede the ordinary law, must, besides being reasonable, be ancient as well as certain. On the question whether a custom should also be immemorial, there appears to be a difference of opinion. In Kuar Sen v. Mamman, 17 All 87: (1995 AWN 10) and Mohidin v. Shivlingappa, 23 Bom 666: (1 Bom LR 170) the view taken is that the common law rule that the custom must have originated in remote antiquity does not apply to India. In Mahamaya Debi v. Haridas, 42 Cal 455: (AIR (2) 1915 Cal 161), it was held, following Mayor of London v. Cox, (1867) 2 H L 239, that a custom originating within time of memory, even though existing in fact, is void at law and that for a custom to be valid it must be immemorial in addition to being reasonable and certain." (v) Jugal Kishore and others v. Umrao Singh and others, AIR (36) 1949 All. 272 (para-7 & 8) : “7. It means that a tenant could acquire the customary easement to graze his cattle on the common pasture in accordance with the custom after “having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot. Such a right must be distinguished from a customary right which is acquired independently of any dominant heritage and is vested in the inhabitants of a locality for their sole benefit. The right to take cattle to a tank for drinking water or to take earth from a tank is a customary right, which is not appendant to any heritage. (8) It must, therefore, be held that the plaintiffs have not acquired any customary easement, but under the custom recorded in the wajib-ul-arz the cattle of the residents of the village, including the plaintiffs, can go to any of the five johars to drink water and the residents of the village can take earth from the johars for constructing their houses, and these are the rights which the residents of the village have been exercising from a long time." 16. The findings in this case are clear and certain and have been arrived at after detained assessment of oral and documentary evidence. The findings in this case are clear and certain and have been arrived at after detained assessment of oral and documentary evidence. Both the courts below clearly and unequivocally found that the religious functions are held on the land uninterrupted for times immemorial, with certainty and covered almost the entire disputed land. These were held reasonably for long period of time beginning from 1923 without any permission of the owners of the land. The oral evidence was unimpeachable. All the substantial questions of law are as such returned against the defendants-appellants. 17. The Second Appeal is consequently dismissed, with costs against defendant-appellant. Appeal Dismissed. ————