Ramaswami, J.:— These appeals are presented against the judgment and decree of the Special Subordinate Judge of Ranchi dated 11-12-1946. First Appeal No. 26 of 1947 is on behalf of defendants 1 to 5 and First Appeal No. 104 of 1947 is on behalf of the Ranchi Municipality.

2. The dispute relates to a triangular piece of land located in the town of Ranchi. The land is 143 acre in area and covers plots 1715, 1716 and 1717 of the Municipal Survey. The Municipal Survey took place in the year 1929 and defendant No. 7, Baralal, was recorded in the khatian for all the three plots. Baralal had given land on lease to Ganga Prasad Budhia, defendant No. 6, who defaulted in payment of rent. Baralal obtained a decree for rent in the Civil Court and in execution of that decree the plaintiff purchased the land in court sale for a sum of Rs. 8,051 on 16-11-1942. The plaintiff obtained a sale certificate and was given possession of the land in due course through Court. The plaintiff applied for mutation of his name in the Municipal records. Mutation was made and the plaintiff was assessed to Municipal tax from the first quarter of 1943-1944. The plaintiff alleges that some Mohammadans of Ranchi put forward a claim that they had right of keeping Tazias on the land during Moharram. The plaintiff asserts that the claim is unfounded. The plaintiff has brought the present suit for a declaration that the title had vested in him and that the Mohammadan community of Ranchi has no customary right to use any part of the land during Moharram for keeping Tazias.

3. Defendants 1 to 5 contested the suit on the ground that plots 1715, 1716 and 1717 did not belong to Baralal and the plaintiff had acquired no title by the sale in the execution case. They alleged that the Mohammadans of Ranchi have used the land for keeping Tazias at the time of Moharram. Defendant No. 9 is State of Bihar. It is claimed on their behalf that plot 1717 and a portion of plot 1716 were acquired by the Government at the expense of the Ranchi Municipality by land acquisition proceedings taken in the year 1908. It is said that possession was given to the Municipality on 24-5-1908. As regards the remaining portion of plots 1716 and 1715 it is claimed that the public have a right to use these plots and that the title vests in the Ranchi Municipality. Defendant No. 9 admitted the claim of defendants 1 to 5 that the land was used for keeping Tazias at the time of Moharram. Defendant No. 6 Ganga Prasad Budhia and defendant No. 7 Baralal also filed written statements. They both support the case of the plaintiff that Ranchi Municipality has no title to the land. After examining the oral and documentary evidence adduced in the case the Subordinate Judge found (1) that the entire disputed land had been acquired by the Government on behalf of the Ranchi Municipality, (2) that the plaintiff has acquired title by adverse possession for a long period, and (3) that the Mohammadans of Ranchi used to keep Tazias on the land but no customary right has been established and the user of the land at the time of Moharram was merely permissive. In view of these findings, the Subordinate Judge decreed the suit in favour of the plaintiff.

4. The first question in this case is whether the plaintiff has established his title to the three disputed plots. The claim of the plaintiff is based upon the sale certificate, exhibit 4, dated 17-12-1942. It is alleged in the plaint and established by evidence that Baralal had leased the land to defendant No. 6, Ganga Prasad Budhia, on 7-4-1934 by a registered Kabuliat, exhibit 1. As Ganga Prasad Budhia defaulted in payment of rent the landlord brought a suit and obtained a decee. In execution of the decree, the land was put to sale and purchased by the plaintiff in the court of the Munsif of Ranchi. The bid-sheet is exhibit 5 and the sale certificate is exhibit 4. Lachmi Narayan Misra (P.W 3) has deposed that he delivered possession to the plaintiff in pursuance of the writ of Dakhaldehani, exhibit 6. The plaintiff also relies upon exhibit 7, a notice sent by the Municipality stating that the three plots had been assessed at a valuation of Rs. 24 per annum and that the assessment would take effect from the first quarter of 1943-1944.

5. The learned Subordinate Judge has accepted the case of the defendants that the land had been acquired in land acquisition proceedings on behalf of the Ranchi Municipality. The case of the plaintiff and of the landlord Baralal was that the land was not the subject-matter of acquisition in any land acquisition proceeding. The Subordinate Judge rejected the case of the defendants and referred in this connection to exhibit A3, the map prepared in the land acquisition proceeding and to exhibit F3, the order-sheet in the land acquisition case, and to exhibit G3, which showed that the father of Baralal was paid compensation for the land acquired. In our opinion the finding of the Subordinate Judge on this point is erroneous. It is admitted by the parties that the total area of the land in dispute is 143 acre according to the Municipal Survey. The land is covered by three plots, 1715, 1716 and 1717, the total area of which according to the Municipal Survey is 143 acre which is equivalent to 4.6 kathas. The land acquisition map, exhibit A3, has given the boundaries but does not give the area of the land which is marked block V.

6. The declaration, however, gives the area. The declaration is No. 2201-LA dated 1-8-1906, published in the Calcutta Gazette. According to the declaration the area of block V is 1 katha 13 dhur. The boundaries given in the declaration are: North — Dinabandhu's lane, South — Gartsarai Road, West — Gartsarai Road, East — Municipal drain. These boundaries tally with Municipal khasra which shows as follows: South Gartsarai Road, North — Dinabandhu's lane, and East — lane. The serious difficulty is to ascertain the identity of the land acquired in the land acquisition proceeding. If the boundaries are correct the area of 1 katha 13 dhurs must be wrong. The land acquired is shown in the declaration under S. 6 to have an area of 1 katha 13 dhurs. The compensation statement, exhibit G3, produced on behalf of the Municipality also shows that the area is 1 katha 13 dhurs. Exhibit G3 shows the compensation granted to Baralal to be Rs. 16/10/9 for an area of 1 katha 13 dhurs.

7. The award under S. 11, (Exhibit E-3(b)), shows the area of blocks 1, 2, 3, 5 and 12 to be 4 bighas 10 kathas which corresponds to the area mentioned in the declaration. It was argued by Mr. M. Rahman who appeared on behalf of the Municipality that the boundaries furnish the correct description of the land and the area must be rejected as false description. This argument is not valid and we think that the doctrine of ‘falsa demonstratio’ does not apply in the circumstances of this case. The ordinary rule is that an erroneous statement as to area will not vitiate a sufficiently certain definition of land by boundaries granted in a deed, but where dimensions are an essential part of the description and not an addition to a sufficient description they cannot be rejected as ‘falsa demonstratio’. That is the principle laid down by the Court of Appeal in — ‘Mellor v. Walmesley’, (1905) 2 Ch 164 (A).

8. It is not sound to argue that the area of the land given in the declaration in the present case is not an essential part of the description of the land. On the contrary, the area of the land is an essential matter to be taken into account in the land acquisition proceeding. The reason is that compensation depends upon the area of the land and under Section 12 of the Land Acquisition Act, the award filed in the Collector's Office is “final and conclusive evidence as between the Collector and the person interested of the ‘true area and value of the land’.” There is also authority for the proposition that if the land actually taken up by Government is different from that mentioned in the declaration issued under the Land Acquisition Act, the proceedings of the Collector are void vide — ‘Gajendra Sahu v. Secy, of State’, 8 Cal LJ 39 (B) and — ‘Harishchunder v. Secy, of State’, 11 Cal WN 875 (C). Not only the declaration in the present case but also the award and the compensation statement show that the area of block V was 1 katha 12 dhurs.

9. Counsel for the appellants referred in this connection to the Municipal register of land, exhibit 13. The entry shows the three sides of the triangular piece of land to be 115′, 56′ and 85′. The argument of the learned counsel is that the area would be roughly equal to 4 kathas but even so there is a serious discrepancy between the area mentioned in the declaration and the area shown in the Municipal register of land. The problem is to ascertain whether it is possible to identify the land which was acquired for the Ranchi Municipality in the land acquisition proceedings. The question in this case cannot be resolved as a matter of construction — the question has passed from the region of difficult construction into the region of ambiguity. As we have already shown, the area comprised in the boundaries as shown in the declaration is 143 acre which is equal to 4.6 kathas but the area actually acquired is 1 katha 13 dhurs. The problem is to find out in what portion of the area within the stated boundaries should the area of 1 katha 13 dhurs be located.

10. In a case of this description where there is an ambiguity as to the area of the land acquired, the ambiguity may be resolved by election of one of the parties. Evidence is admissible to show that the uncertainty of the description of the land has been solved by one of the parties exercising the election. As stated in Norton on Deeds 1st edition at page 101:

“Where a grant is general, as the moiety of a yardland or 120 acres in a certain waste, without certainty in what part of the waste the grantee shall have the land, or the special name of the land, or how it is bounded, and without any certain description of it, the grant, may be made good by the election of the grantee, if the grantor be a common person, but not if he be the Crown, in which case the grant is altogether void: — ‘Hungerford's case, (1585) 1 Leon 30 (D)’.”

In the present case, however, there is no evidence to suggest that the Ranchi Municipality elected to take possession of any particular area within the four boundaries stated in the land acquisition proceeding. On the contrary, the evidence is that the Ranchi Municipality did not take possession of any part of the land and that Baralal continued in possession without any interruption. (His Lordship referred to the evidence and proceeded:)

11. In the absence of any evidence as regards election, it is clear that the uncertainty in the description as to the area and in the description as to the boundaries cannot be removed and the identity of the land cannot be ascertained. It follows that the land acquisition proceeding with respect to block V is void for uncertainty and the Ranchi Municipality acquired no title to any portion of the disputed land by virtue of the land acquisition proceeding. The case of the Municipality is that the land acquisition proceeding related to plot 1717 and a portion of plot 1716, and as regards the rest of plot 1716 and plot 1715, the land was roadside land and title vested in the Municipality. No documentary evidence, however, has been adduced to show that the Municipality has title to plot 1715 and to the portion of plot 1716. In our opinion, the plaintiff has acquired a valid title to the land by purchase in the execution sale and the claim of the Municipality with respect to all the three disputed plots must fail.

12. I turn to the next question arising in this case — Whether defendants 1 to 5 have established the customary right of the Mohammadan community to keep Tazias on the land at the time of Moharam? On this question there is an impressive volume of evidence given by both parties. P.W 1, the drummer, has said that the Mohammadans keep Tazias on the land during Moharram every year since he attained the age of discretion. Raghunath Sahay (P.W 2), who is a pleader's clerk, has given similar evidence. Mr. Sailendra Nath Mitra (D.W 1) who is a senior Pleader of Ranchi, has stated that Mohammadans keep Tazias on the land “since he attained the age of discretion”. Shital Prasad (P.W 5) who is Karpardaz of Baralal has said that Tazias are kept “in a portion of plot 1715”. When questioned by the Court the witness said that the Maliks of the land did not raise objection as the land was ‘parti’ and that many people used the land for other purposes with the implied permission of the Maliks. As regards Mohammadan witnesses, mention should be made specially of D.Ws 2, 3, 5, 6 and 8. All these witnesses have said that Tazias are kept on the disputed land for several years. The argument of the learned counsel on behalf of the plaintiff is that the evidence does not establish that there was a customary right by virtue of which the Tazias are kept on the disputed land. The argument is that the customary right must be certain in regard to the person or class of persons or the community that happens to enjoy it and unless this certainty exists the customary right cannot be recognised by the Court. In my opinion this argument is correct. It is true that a fluctuating body of persons like a village community may acquire a customary right, but it is necessary that the group of body of persons who claim the right must be certain and should be capable of being identified. There is no reliable evidence in this case that the Tazia which was kept on the disputed land was placed on behalf of any particular class of persons or by the Mohanrmadan community of Ranchi or of any Mahalla of Ranchi. Ghulam Hyder (D.W 3) states that he was in charge of an akhara for 14 years and that he used to keep a Tazia on the disputed land.

13. This witness does not state that the Tazia was prepared on behalf of the Mohammadans of the locality or that the expenses were collectively met. P.W 5 has said that Ghulam Hyder was employed as a servant in the family of the landlord Baralal. P.W 5 has further said (and the learned Subordinate Judge accepted his evidence) that the land was used with the implied permission of Baralal for keeping the Tazias. D.W 6, Jalil Shah, has said that Tazia was “formerly used to be kept on behalf of Jamir Ali Daroga”. There is no evidence given on behalf of the defendants in this case that there was any connection between Jamir Ali Daroga and Ghulam Hyder or that either of these persons had constructed the Tazia on behalf of the Mohammadans of the Mahalla. It must be held in this state of evidence that the defendants had not established that the Mohammadans of the Mahalla or of the Ranchi town had proved a customary right for keeping Tazia on the land in dispute.

14. Mr. Rahman argued that it was not necessary to establish customary right that the same number of Tazias should be placed every year or that the same persons should take part in the akhara. This argument is correct but unless there is evidence that Tazias are kept on behalf of a community or on behalf of a group of persons residing within a particular Mahalla or within a particular locality there is no customary right established in law which can be recognised by Courts. That is the view taken in — ‘Kuar Sen v. Mamman’, 17 All 87 (E) in which the plaintiff sued for possession of a piece of land, which he alleged formed part of the court-yard of his kothi, and for demolition of a chabutra thereon. The defendants denied the plaintiff's title and alleged that they always used the chabutra as a sitting place, and that during the Moharram the Tazias and Alums were exhibited upon the chabutra and a takht was placed upon it. The court of first instance found that the defendants had a right to use the land in the manner claimed during the Moharram. The lower appellate Court on the question of the defendants' right to use the land in the manner claimed by them found as follows:

“That various ‘mirasis’, whose connection with each other is not established have within a period of twenty years or so placed Tazias upon the land and sung there.”

It was held by the High Court that this finding of fact did not necessarily in law lead to the conclusion that there was a local custom by virtue of which the easement now claimed by the defendants was acquired. At page 92 the learned Judges state:

“In our opinion, a Court should not decide that a local custom, such as that set up in this case, exists, unless the Court is satisfied of its reasonableness and its certainty as to extent and application, and is further satisfied by the evidence that the enjoyment of the right was not by leave granted or by stealth or by force, and that it had been openly enjoyed for such a length of time as suggests that originally, by agreement or otherwise, the usage had become a customary law of the place in respect of the persons and things which it concerned.

As we understand the judgment of the District Judge, all which he found to have been proved by the evidence was that different ‘mirasis’ had within a period of about twenty years before suit placed, during the Moharram, Tazias upon the land and had sung there, but that it was not proved, at any rate to his satisfaction, that there was any connection between such different ‘mirasis’, or that they represented the body of ‘mirasis’ of Bareilly, or even of the particular mohalla or part of Bareilly in which the plaintiff's land is situate. We cannot say that in law the District Judge was bound, on the evidence before him in first appeal, to hold that a local custom under which the defendants could lawfully and adversely to the plaintiff go upon his land or maintain or erect a chabutra there was established.”

This decision was approved by the Judicial Committee in — ‘Baba Narayan v. Saboosa’, AIR 1943 PC 111 (F) and it was observed by Sir George Rankin as follows:

“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.”

Applying the principle to the facts disclosed in the present case, I am of opinion that as a matter of law the defendants have not established customary right of keeping Tazias on the disputed land at the time of Moharram.

15. An objection was raised by Mr. Rahman that the lower court has given a finding that the plaintiff has acquired title by adverse possession though there was no pleading or issue on this point. We think that the criticism of the learned counsel is justified. If the learned Subordinate Judge thought that the question of adverse possession was necessary to be determined, he ought to have framed an issue on the point and called upon the parties to put in evidence on this issue and then reached a finding thereon. It was contended on behalf of the plaintiff that the question of adverse possession was not a matter of pleadings and that the question may be raised in a Court of Appeal if material facts have been found. Reference was made in this connection to — ‘Sukan Das v. Krishnanand’, 32 Pat 353 (G), in which it was held by a Bench of this Court that the ordinary rule was that adverse possession should be distinctly raised in the pleadings and should also form the subject-matter of an issue, but in exceptional cases the plaintiff may be allowed to succeed on a title by adverse possession pleaded for the first time in the court of appeal when the fact is clear and unmistakable and the defendant is not taken by surprise.

16. We do not think that this case bears any similarity to the present case and the absence of an issue has materially prejudiced both the parties to a great extent. All the material facts on the question of possession have not been found by the lower court. We doubt whether the parties have given all the evidence available. For there was no issue on the question of adverse possession and the parties had no notice that evidence should be given on this question. Counsel for the appellants challenged the finding of the lower court on the question of adverse possession. Counsel said that the evidence on the record did not support the finding that the plaintiff had acquired title to the land by adverse possession. We think that the parties have not been given opportunity to produce evidence on this point. In the absence of an issue we, therefore, do not propose to examine the evidence on this point or to express an opinion whether the plaintiff has acquired title to the land by adverse possession. The question is, however, immaterial in view of our finding that the plaintiff has acquired title by virtue of his purchase in the execution case and that the Municipality has not acquired previous title to the land in the land acquisition proceeding.

17. Before parting with this case, we wish to express a hope that some arrangement may be devised as a matter of compromise and as a matter of good-will between the Hindus and the Muslims for keeping Tazias in a portion of the disputed land at the time of Moharram. At the time of hearing we were told by the learned counsel on both sides that the parties might be willing to enter into some kind of compromise for permissive use. We venture to hope that such a compromise would be reached.

18. But at the moment our only duty is to declare the legal rights of the parties on the material available.

19. For the reasons already given, I would affirm the judgment and decree of the learned Subordinate Judge and dismiss these appeals with costs.

20. Sinha, J.:— I agree.

B/V.R.B

21. Appeals dismissed.