LexSTATE OF BIHAR & ORS. versus SUBODH GOPAL BOSE & ANR.
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A B c D E F G B STATE OF BIHAR & ORS. v. SUBODH GOPAL BOSE & ANR. August 22, 1967 (J. C. SHAH AND S: M. SIKRI, JJ,J Bihar Tenancy Act, 1885, s.102-Custom-sneets prepared under- Right of tenants of Lower Murli Hill (Shahabad District) to quarry limestone fo1' trade purposes whether supported by said custom sheets-Right whether could be claimed as a profit a prendre or cus- tomary easement-Riuht m¥St be reasonable to be accepted. Respondent No. l acquired tenancy rights in five plots in the villages of Biknaur and Samahuta situated in the area known as Lower Murli Hill in District Shahabad;-Bihar. In 1949 he filed a plaint in the Court of the Subordinate Judge Sasaram, against the State of Bihar and others, claiming inter alia that as a tenant he had a customary right to quarry limestone for trade purposes from the Lower Murli Hill. The claim was based mainly on certain entries in the Custom-sheets prepared at the time of the Cadastral Survey in 1913 under s. 102 of the Bihar Tenancy Act, 1885. The trial court re- jected the claim but the High Court held the custom to be establish- ed by the evidence of the Customs-sheets. The defendants appealed. HeldH The High Court was in error in holding that the plain- tiff had established the custom pleaded by him or that it was rea- sonable. (i) There was nothing to show that the practices and privileges recorded in the Custom-Sheets were exercised as a matter of right. The record has presumptive value. But the revenue authorities were concerned to ascertain the existing state of affairs and not to deter- mine whether the practices and privileges were ancient, certain, reasonable and continuous. As evidence of local custom, the custom sheets had therefore not much value. On the other hand there were indications that the exercise of the privileges recorded therein was permissive. Even on the most liberal interpretation they did not pro- vide evidence of the exercise of the privilege of commercial exploi- tation of limestone from the area in question. [317D; 319G] (ii) Even granting that the Custom-sheets recorded a local cus- tom that the tenants in the villages of Baknaur and Samahuta ex- cavated stones from the hills near the villages for purposes of trade, a claim of right founded on that custom must be held unreasonable and incapable of enforcement by the sanction of a court's verdict. [320BJ A clllim in the nature of a profit a prendre operating. in favour of an indeterminate class of persons and arising out of a local cus- tom may be held enforceable only if it satisfies the tests of a valid custom. A custom is a usage by virtue of which a class of persons be- longing to a defined section in a focality are entitled · to exercise specific rights against certain other porsons or property in the same locality. To the extent to which it is inconsistent with U>e generd law undoubtedly the custom prevails. But to be valid a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictiy. A right in the nature of a profit a prendre in the exercise of which the residents of a. loca- lity are entitled to excavate stone for trade purposes would ex-facie 313 314 SUPREME COURT REPORTS (1968) l 8.C.R. be unreasonable, because the eixercise of such a right ordinarily A tends to the complete destruction of the subject matter of the profit. The custom, if exercised in its amplitude as claimed may also lead to breaches of the peace, for it would be ,open to' all tenants to work any quarry $imultaneously for trade purposes. [321B-D; 324D] Lord Rivers v. Adams, L.R.3 Ex. Div. 361. Harris & Anr. v. Ear! of Chesterfield and Anr., [1911] A.C. 623, A!fred F. Beckett B Ltd. v. Lyons (1967) I All E.R. 833, referred to Lutchhmeeput Singh v. Sadaulla Nushyo & Ors., I.L.R. 9 Cal. 698 and Arjun Kaibarta v. Manoranjan De Bhoumick, I.L.&. 61 Cal. 45, >:pproved. Henry Goodman v. The Mayor and Free Burgesses of the Bor- ough of Saltash. 7 A.C. 633 and Mercer v. Denne, [1904] 2 Ch. D, 534, 557 distinguished. c OVIL APPELLATE JURISDICTION: Civil Appeals Nos. 147 & 148 of 1966. Appeals from the judgment and decree dated November 15, 1960 of the Patna High Court in Appeal from Original Decree No. 212 of 1961. D. P. Singh, K. M. K. Nair and S. P. Singh, for the appel- D !ants (in C.A. No. 147 of 1966) and respondent No. 2 (in C.A. No. 148 of 1966). A. K. Sen, K. K. Sinha and
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