Custom which is to be recognized is one of law which can be taken in second appeal.

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 upon the status of the larger as of the smaller area. However that may be, the appellants’ case is that the disputed area must be recognised 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 upon it.

In the first Court, the Court of the Munsiff of Jaipur, questions were raised as to the form of the suit and as to 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 non-joinder of the Zamindar or of the Collector.

The important issue for the purposes of the appeal, therefore, 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 reserved from time immemorial and the people of the locality are using it for the said purpose from generation to generation"

without pleading any special legal conclusion from these facts. At the trial their Advocate disclaimed any intention of basing his case on an easement or prescriptive right, and the Munsiff, treating the claim as one of an alleged customary right, held that the evidence was insufficient to establish the existence of such a right. He further h’eld that a claim based on a presumption of lost grant must necessarily fail, since no such presumption could be made in favour of villagers ‘‘who constitute a fluctuating and unascertained body of persons." The additional Subordinate Judge before whom the case went on first appeal, while noting that the appellants did not depend on any right of easement, held that on the evidence there had been a "dedication" of the land for use as cremation or burial ground. He rejected the view that the appellants’ case was based upon "any customary right of user" and expressed his final conclusion on a review of the evidence with the words

"In my opinion the reservation of the lands.....amounts to dedication or a re-grant by the landlord."

On second appeal in the High Court of Patna the Judge, Mr. Justice Shearer, held that it was impossible to say that any