MANNATTIL KRISHNAH NAIR Vs. SIVARAMAKRISHNA PATTAR

JUDGEMENT

(1.) The plaintiffs case is that they as inhabitants of the village of Parali have a customary right to graze cattle on a paramba belonging to the 3 defendant's sthanam to walk across it, to perform certain ceremonies at the foot of the "arasu" or peepul tree on it, to perform pradakshanam round the tree and use the tank therein for bathing purposes and that the 1st defendant who obtained a melcharath in 1911 obstructed the plaintiffs from enjoying the customary right and, therefore, they are entitled to a permanent injunction restraining him from obsructing them in the enjoyment of their customary right. The District Munsif held that the customary right was not satisfactorily made out and dismissed the plaintiffs suit. On appeal the Subordinate Judge found in favour of the plaintiffs and granted a permanent injunction restraining the 1 defendant from interfering with the enjoyment of the customary right. The 1 defendant has preferred this second appeal.

(2.) There is evidence in record to show that a tank existed in 1854 when the paramba was demised on kanom by the sthanam. The kanomdar was in enjoyment till 1915, when the 1st defendant who obtained a melcharath in 1911 obtained possession of the paramba. The suit was laid on 16 December 1916. There is evidence that for about 60 or 70 years the villagers of Parali used the tank for bathing purposes. The question is whether the inhabitants of Parali have acquired the customary right claimed by them. The tank is admittedly an irrigation tank. The evidence on behalf of the plaintiffs is that the inhabitants of Parali generally bathe in a river close by, and when the water of the river is muddy some of the people use the tank for bathing purposes, and funeral ceremonies are sometimes performed under the peepul tree. Is this evidence sufficient to make out the customary right in favour of the plaintiffs? The acts of the villagers of Parali seem to be of too fugitive a character to establish a customary right in their favour. The facts on record are not sufficient to establish a valid custom. It must be reasonable and it must be definite or certain. From the evidence it appears that when the water of the river is muddy some people go and bathe in the tank and some others prefer to bathe in the river. It is contended for the appellant that all sorts of people have been bathing in the tank; but Mr. Ramachandra Aiyar for the respondent contends that it is only the people of the Parali village and visitors to the village make use of the tank. This shows the indefiniteness of the customary right claimed by the plaintiffs.

(3.) It is not disputed that a customary right to bathe in a tank can be acquired by the residents of a village. But, in order to establish a customary right, the evidence must be clear and the enjoyment must be as of right for a long number of years. In considering the evidence regard must be had to the habits and customs of the people. When the water of a river in which people generally bathe is too muddy they may go to a neighbouring tank for their bath and nobody thinks of objecting to such user especially when it is an irrigation tank and that user cannot be said to be as of right. It is a well-known thing in Madras for neighbours to take water from a tap in a private compound. Nobody can assert that it is done as a matter of right. It is by an implied permission that the water is taken; and when people bathe in an irrigation tank nobody thinks of objecting to it, for there is no loss caused to anybody, nor is there interference with anybody's rights. According to the evidence in this case, whenever water was wanted for irrigation purposes water was let out of the tank by low-caste people and Brahmins performed Punyavachanam before bathing in it. There is the circumstance noticed by the District Munsif, viz., the plaintiffs own men, "were in possession of the paramba and everything in it as kanomdars during the time during which enjoyment was"--and such enjoyment could therefore be traceable to implied permission. I think the facts of this case come within the principle laid down by Ayling and Odgers, JJ., in The Taluk Board, Dindigul v. Venkatramier A. I. R. 1924 Mad. 197.