Law: Civil Procedure Code (V of 1908)

Section:

(a) Custom --   ----- Customary right of pasturage - Immemorial user-Nature and burden of proof to establish such right.   A right of pasturage arising from immemorial user resembles a right based upon custom and thus a right of pasturage can only be claimed on the basis of a customary right and the ordinary incidents of a customary right attach to it, including the manner and methods of its proof and that even if after such proof the custom is found to have been established, it must still be shown that it is not unreasonable before it can be treated as a valid custom.   Bholanath Hundi and others v. Midnapore Zemindary Company Limited and six others 31 I A 75 ; Lakshmidhar Miera and others v. Rangolal and others 54 C. W N 143 (P C); Asrabulla and others v. Kiamatulla Haji Choudhury arid others A I R 1937 Cal. 248 ; Syed Ali and others v. Sarjan Ali and others 18 C W N 735 ; Saladur Jaman Choudhury v. Wajaddin I L R 63 Cal. 851 and Asrabulla and others v. Kiamatulla Haji Choudhury and others A I R 1937 Cal. 245 ref.   It is undoubted that a custom observed in a particular district derives its force from the fact that it has, from long usage, obtained in that district, the force of law. It must be ancient ; but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man still less that it is ancient in the English technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of the particular district.   Mst. Subhani and others v. Nawab and others A I R 1941 PC 21 rel.   The burden lies upon one who sets up a custom in derogation of the ordinary rights of another as to ownership of immovable property to give clear and positive proof of the user relied upon to substantiate the custom.   Baba Narayan Lakras and others v. Saboosa and others 47 C W N 933 rel.  …