KOMMU VENKADU Vs. CANDRAKOTA SUBBARAMAIAH

JUDGEMENT

(1.) THESE two Second Appeals arise out of two suits instituted against the residents of Mallepalli and Madigapalli for restraining them from passing through the fields of the Plaintiffs by means of a permanent' injunction. The Defendants pleaded that for over 100 years they were passing through the fields of the Plaintiffs and through the fields of some other ryots for going to Mecherla. The District Munsif of Guserala held that the Defendants had established a customary easement and dismissed the suits. On appeal, the Subordinate Judge of Narasaraopet allowed the appeals on two grounds, namely that the Defendants did not plead customary right in their written statements, and that they did not make out the customary right. The Second Appeals are filed on behalf of the villagers of Malepalli and Madigapalli.

(2.) THE main contentions urged by the learned advocate for the appellants are that though the expression "customary right" is not specially mentioned in the written statements, the facts set out therein are sufficient to establish a customary right in the villagers of Malepalli and Madagapalli. It was also contended that the custom was not unreasonable as found by the lower Appellate Court and that the mere fact that other villagers were also using that pathway did not negative their customary right. I agree with the contentions of the learned advocate for the appellants that having regard to the Privy Council's decision reported in - 'Lakshmidhar Misra v. Ranglal' : AIR 1950 PC 56 (A), the omission to use the words "customary right" in the pleadings or state the exact nature .of the legal right does not prevent the Court from upholding the customary rights if the facts warrant that conclusion.

(3.) THE learned advocate for the appellants contended that the period for ascertaining as to whether the custom is reasonable or not is the period of its inception and relied upon the decision reported in - 'Asaraulla v. Kiamatulla Haji Chaudhuri' : AIR 1937 Cal 245 (C). I agree with that contention. There is no evidence in the present case that the lands were not cultivable lands when the custom originated. The evidence is to the effect that the lands are always being cultivated with dry crops. So, the question of the custom having been reasonable at the inception, but having become unreasonable later on does not arise for consideration on the facts of the case. The learned advocate for the respondents relied on the decision reported in - 'Baldeo Bind v. Abdul Aziz' : AIR 1948 Pat 425 (D) in support of the proposition that a customary right claimed by the Plaintiffs to go in procession through land bearing valuable crops should fail on the ground that the custom was unreasonable. I adopt the reasons of that case and hold that the custom pleaded in the present case is also not reasonable.