Customary village right over land for cremation upheld where long local use established an enforceable immemorial custom.

Long and continuous village use of land for cremation from time immemorial, without abandonment, was held to support a customary right binding the land for the benefit of local inhabitants. The claim was treated as resting on custom, not on dedication to the public or the doctrine of lost grant, and the custom was described as requiring certainty, reasonableness, and immemorial origin. The first appellate court's factual findings were binding, but the legal effect of those facts remained open to review; the higher court erred by replacing the customary-right analysis with an incorrect legal basis. The customary right was affirmed, and protection of the cremation ground was restored, with burial-ground relief excluded.

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Issues: (i) Whether the disputed land was bound by a local custom reserving it as the village cremation ground. (ii) Whether the High Court was right in interfering in second appeal with the first appellate court's conclusion on the effect of the proved facts.

Issue (i): Whether the disputed land was bound by a local custom reserving it as the village cremation ground.

Analysis: The proved facts showed long and continuous user of the land by the villagers for cremation purposes from time immemorial, without abandonment. The earlier attempts to treat the claim as one of dedication or lost grant were rejected as legally inappropriate. A right of this kind was held to rest on custom, not on dedication to the public at large or on the doctrine of lost grant, and such a custom may bind land for the benefit of the inhabitants of a locality if it is certain, reasonable, and of immemorial origin.

Conclusion: The disputed area was held to be subject to a customary right and had to be reserved as the village cremation ground, in favour of the appellants.

Issue (ii): Whether the High Court was right in interfering in second appeal with the first appellate court's conclusion on the effect of the proved facts.

Analysis: The finding of the first appellate court on the underlying facts was binding, but the legal effect of those facts remained open to review. The conclusion that the facts amounted to dedication or lost grant was treated as a question of law derived from the facts, and the High Court's substitution of a different legal view was found to be erroneous because it did not apply the correct legal basis of customary right.

Conclusion: The High Court's interference in second appeal was not sustained, in favour of the appellants.

Final Conclusion: The appeal succeeded, the customary village right over the land was affirmed, and the decree restoring protection of the cremation ground was reinstated with the minor modification excluding burial ground relief.

Ratio Decidendi: An ancient and continuous local user of land by the inhabitants of a village for a defined communal purpose may create a legally enforceable customary right, and the legal effect of proved facts supporting such a custom is a question of law open to review in appeal.

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