Judgement

Appeal (No. 77 of 1947), by special leave, from a judgment and decree of the High Court (September 24, 1943) which reversed a judgment and decree of the Additional Subordinate Judge of Cuttack (September 12, 1939) which had reversed a judgment and order of the Munsiff of Jaipur (May 19, 1937).

The main question in this appeal was whether the villagers of Byree, Killa Darpan, district Cuttack, Orissa, had acquired a right to the common use of two parcels of land of a total of 3.90 acres as a cremation ground.

The facts appear from the judgment of the Judicial Committee.

The Munsiff, before whom the case first came, treated the claim of the appellants as one of an alleged customary right, but held that the evidence was insufficient to establish the alleged right.

The Additional Subordinate Judge, on first appeal, held that on the evidence there had been a “dedication " of the land for use as a cremation ground, but on second appeal the High Court (Shearer J.) was of opinion that it could not be said that anything amounting to dedication of the land had occurred, and he reversed the decision of the Subordinate Judge. .

1949. July 13,14. Bagram for the appellants. Sir Thomas Strangman K.C. and Pullan for the first respondent, Rangalal.

Oct. 20. The judgment of their Lordships was delivered by LORD RADCLIFFE. This appeal is concerned with the legal status of two parcels of land, comprising 3.90 acres in all, in the village of Byree, Killa Darpan, district Cuttack, Orissa. These two parcels, which may conveniently be referred to as " the disputed area," are themselves part of a plot, No. 1990-2401, in the same village, the plot lying to the west of the Bengal-Nagpur railway line which intersects the village. The documents in this case, not excluding the judgments, do not make it always an easy task to determine whether the whole plot No. 1990-2401 is not more properly the subject of dispute than that portion of it which is described as the disputed area. In fact, all the relevant evidence bears as much on the status of the larger as of the smaller area. However that may be, the appellants case is that the disputed area must be recognized in law as a cremation ground of the village and that, it being so, no part of the site can be made available for the purposes of private industry. The respondents Rangalal, Lachminarayan and Balu Ram, on the other hand, maintain that the disputed area has been validly granted to them, or some of them, by the Zamindar of the Killa Darpan estate and that they are entitled to occupy the site for the purposes of a rice mill which, at the date of the institution of the suit, they were proceeding to erect on it.

In the first court, the Court of the Munsiff of Jaipur, questions were raised as to the form of the suit and whether the necessary parties were before the court. Issues were framed with regard to these points. The learned Munsiff decided these issues in favour of the appellants, who were plaintiffs in the suit. Neither of the intervening courts expressed any disagreement with his holding on these issues, and no point with regard to them was pressed in argument before their Lordships. It may be taken, therefore, that the appellants, of whom the third is in fact the owner of an existing rice mill in the same village, are entitled to maintain the suit in a representative capacity on behalf of the villagers and that the suit is not defective in form by reason of the nonjoinder of the Zamindar or of the collector.

The important issue for the purposes of the appeal, there fore, is that which was No. 5 of the issues framed by the trial judge. It was expressed as follows "Is the disputed land " a Sarbasadharan cremation ground ? " This question, which can hardly be regarded as other than a mixed question of law and fact, received a diversity of answers in the courts below. The appellants, as they were entitled to, confined their plaint to the allegation of fact that “the said plot has " been res