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HIGH COURT OF HIMACHAL PRADESH
C. B. CAPOOR, J.
Tula
Versus
Sadh
Second Appeal No.24 of 1958
Decided On : 23-10-1961
CUSTOMARY RIGHT TO GRAZE CATTLE - VALIDITY - REASONABLENESS - EFFECT OF CONSTITUTION OF INDIA - ARTICLE 13 AND 19(1)(F) - CUSTOMARY RIGHT TO GRAZE CATTLE IN DISPUTED LAND DURING KHARIF SEASON - HELD TO BE VALID AND REASONABLE RESTRICTION ON RIGHT TO HOLD PROPERTY - NOT VOID UNDER ARTICLE 13 OF THE CONSTITUTION.
Fact of the Case:
Plaintiffs, owners of land in Hadbast No.269 Ghogardhar, filed a suit seeking a perpetual injunction restraining the defendants from grazing their cattle in the disputed land during the Kharif season. The defendants claimed a customary right to graze their cattle in the disputed land, relying on an order issued by the Superintendent Mandi State in 1917 recognizing their right. The plaintiffs contended that the order was not binding on them and that the right claimed by the defendants was an infringement of their fundamental right to hold and enjoy their property under Article 19(1)(f) of the Constitution of India.
Finding of the Court:
The District Judge held that the defendants had acquired a customary right to graze their cattle in the disputed land during the Kharif season and that the order of the Superintendent Mandi was of a competent Court and was relevant under sections 13 and 42 of the Indian Evidence Act. The High Court upheld the findings of the District Judge.
Issues: 1. Whether the defendants have acquired a customary right to graze their cattle in the disputed land during Kharif season? 2. Whether the order dated 21-6-1917 made by the Superintendent Mandi was of a competent Court? 3. Whether the said order is relevant under the Indian Evidence Act?
Ratio Decidendi: 1. The Court held that the defendants had acquired a customary right to graze their cattle in the disputed land during the Kharif season based on the following factors: - Overwhelming evidence from both plaintiffs' and defendants' witnesses indicating that the Gujars of the relevant villages had been grazing their cattle in the disputed land for more than 80 years. - An order issued by the Superintendent Mandi in 1917 recognizing the Gujars' right to graze their cattle in the disputed land, which was found to be a valid order made by a competent Court and relevant under sections 13 and 42 of the Indian Evidence Act. 2. The Court held that the customary right claimed by the defendants was not unreasonable, considering that: - The right had been exercised for a long period of time and was reasonable at its inception. - The right did not entirely deprive the plaintiffs of the use of their land, as they could still use and enjoy it subject to the customary right. - Any damage caused to the plaintiffs' land as a result of the exercise of the right was incidental and could be compensated through a separate suit for damages. 3. The Court held that the customary right claimed by the defendants did not become void on the coming into force of the Constitution of India, as it was a reasonable restriction on the right to hold property in the interest of the general public. The Court reasoned that: - The right was in the interest of a section of the public, namely, the Gujars of the relevant villages, who relied on cattle grazing for their livelihood. - The right was a valuable one, as cattle have a significant role in the economy of hilly regions. - The right did not entirely deprive the plaintiffs of their right to hold and enjoy their property, as they could still use and enjoy it subject to the customary right.
Final Decision: The appeal was dismissed, and the judgment and decree of the District Judge were upheld.
2. Briefly stated, the plaint allegations were as below:
The plaintiffs were the owners of different parcels of land comprised in several Khasra numbers in Hadbast No.269 Ghogardhar, Tehsil Jogindemagar. For the last three,years the defendants have without any right been letting loose their cattle for grazing in the disputed land in the Kharif season thereby preventing the plaintiffs from sowing any crop in their land in that season .On 21-6-1917 an order was made by Shri H.W Emerson, the then Superintendent Mandi State, Recognizing that Hindu Gujars of villages Drangsira, Guma and Ner Kalari had a right to graze their cattle in the land situated in Ghogardhar subject to the payment of 50 per cent of the land revenue to the owners of the land and the supply of milk at the paraos (stages) Urla, Drang arid Jhatmgri. That order is not binding on the plaintiffs as Shri Emersorf had not power to make it and it has in particular ceased to be binding on the coming into force of the Constitution of India inasmuch as the right of the Hindu Gujars recognized in the aforesaid order was an infringement of fundamental right of the plaintiffs to hold and enjoy their property and, by virtue of Article 13 of the Constitution had become void and inoperative. The defendants are further stated to have ceased to pay the land revenue and to supply milk at the paraos. On the above allegations the plaintiffs mainly prayed for the grant of a perpetual injunction restraining the defendants from grazing their cattle in the disputed land.
3. The defence in the main was that the defendants had been grazing their cattle in the disputed land after the harvesting of the Rabi crop for a long time whereof human memory runneth not to the contrary that the order of the Superintendent Mandi was binding on the plaintiffs, that they were not liable to supply, milk at the paraos free of cost arid that they had not ceased to pay 50 per cent of the land revenue, rather the plaintiffs had refused to accept the same when it was offered. It was denied that the right to graze cattle in the Kharif season was an infringement of the fundamental right of the plaintiffs or had become void under Article 13 of the Constitution of India.
4. By an order dated 29-11-1960 the following issues were remitted to the learned District Judge:-
1. Whether the Gujars of villages Drangsira, Guma and Ner Kalan have acquired either a customary easement or a customary right to graze their cattle in the disputed land of the plaintiffs during Kharif season?
2. (a) Whether the order dated 21-6-1917 made by the Superintendent Mandi was of a competent Court?
(b) Is the said order relevant under the Indian Evidence Act?.
5. The findings recorded by the learned District Judge are that the Gujars of villages Drangsira, Guma and Ner Kalan have acquired a customary right to graze their cattle in the disputed land during the Kharif season, that the order dated 21-6-1917 made by the Superintendent Mandi was of a competent Court and was relevant under sections 13 and 42 of the Indian Evidence Act.
6. These findings have been challenged on behalf of the appellants.
7. The first question that arises for decision is as to whether the defendants have acquired a customary right to graze their cattle in the disputed land during Kharif season. There is overwhelming evidence not only the one tendered on behalf of the defendants but also the one led on behalf of the plaintiffs bearing out that for more than 80 years the Gujars of villages Drangsira, Guma and Ner Kalan have been grazing their cattle in the disputed land. Shri Kishan Chand (P.W.1). Thanthu (P.W.2) Sidhu (P.W.3), Tulsi Ram (P.W.4), Swaru (P.W.5), Hirdai Ram (P.W.6) Achhru Ram (P.W.7), Bhantu (R W.8) and Setu (P.W.9) stated th
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