MUCHUMARRI MALLIAH Vs. YERRAVALU GANGANNA

JUDGEMENT

(1.) In this case we called for a finding on the issue Whether the plaintiffs have a right by custom to carry on their procession along the public streets on the occasions mentioned in the plaint with daylight torches as claimed by them

(2.) A finding has been returned by the District Judge against the plaintiffs; he has held that it is not proved that the plaintiffs have made out such a custom as alleged by them. Ordinarily on this finding the appeal would have been allowed and the suit directed to be dismissed, but it is argued by Mr. Ramachandra Ayyar for the plaintiffs who now appears for the first time in the ease that we should go back upon what we held on the last occasion and hold that the plaintiffs have a right as members of the public to use public roads in any manner that they can lawfully use them and that it is not open to any other member of the public to prevent them from so doing unless they infringe some particular right of the other or they infringe any magisterial orders or police regulations or cause injury to any member of the public by so using. This argument was not urged before us at the time when the case was heard by us and we called for findings. In fact as stated in our judgment it was expressly admitted by the learned vakil who then appeared for the plaintiffs that the plaintiffs based their right to take processions with the accompaniments named only as a matter of customary right and if they were not able to establish such a customary right they would not be entitled to a declaration.

(3.) It is contended on behalf of the plaintiffs that the learned vakil who appeared then was acting beyond his authority and the admission being on a question of law is not binding on the clients ; but the argument overlooks the nature of the suit. The plaint says that by immemorial custom the plaintiffs in this suit and their castemen have the right from time immemorial to conduct processions in these streets with music and daylight torches. The Kapus the defendants denied this customary right and they stated that it was merely an attempt made by the plaintiffs to make themselves equal to the Kapus in caste status by carrying daylight torches and that the Kapus alone were entitled to this privilege and that on that ground they objected to the declaration being granted. The issue was worded like this: Whether the plaintiffs have not the right to carry daylight torches in procession as claimed by them.