Law: Civil Procedure Code (V of 1908)

Section: 160

(a) Evidence Appreciation of evidence-Concurrent findings of fact of lower Courts-Cannot be challenged in second appeal on plea of wrong mode of appreciation of evidence - Civil Procedure Code (V of 1908), S. 160. Abdul Majid and others v. Khalil Ahmed 12 D L R 132 (S C) fol. (6) Custom -Customary right-Pre-supposes existence on assertion of that right by person enjoying it as of right and not dependent on consent of anyone else-Villagers claiming customary right of pasturage on adjoining land-Evidence on record, however, indicating that claimant villagers were in possession of such land with consent of landlord-Claimant, in circumstances, held, failed to prove their customary right. (c) Custom- Customary right-Elements constituting cus tomary right- Custom to be followed must be immemorial, reasonable, continuous without interruption since its origin and must be certain in respect of its nature generally as well as in respect of locality where allegedly obtaining and persons allegedly affected-Villagers claiming customary right of pasturage on adjoining land-Evidence on record indicating some of villagers having applied for jote settlement of such land and landlord giving settlement to individuals-Lower Court's decision, based on such considerations, rejecting claim of customary right, in circumstances, upheld. Mahamaya Debi v. Haridas Haldar and another A I R 1915 Cal. 161 ; Saladar Jaman Chaudhuri v. Oajaddin I L R 63 Cal. 851 and Barindra Chandra Das and others v. Maulvi Mahbubal Quadir Chowdhury and others 1954 P L R Dacca 665 rel. (c) Appellate Court -Practice-Appellate Court can take into consideration subsequent events and ch2nge of law in arriving at its decision. In the present case the claim of the appellants in respect of their customary right of pasturage on adjoining land was rejected by the lower appellate Court relying on a judgment of the High Court to the effect that after passing of the East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), all customary rights and easements which are incumbrances extinguished as soon as the estate to which that right related was acquired by Government. It was contended that the said…