GOLI PADDAYYA Vs. CHALIKI KRISHNAMURTHY

JUDGEMENT

(1.) In this case the only question is whether the defendants who are twenty-five in number, owners of certain fields south of the plaintiffs field No. 147 are entitled to use the track along the western portion of the plaintiffs field for the purpose of taking their cattle, men and carts. In the shape in which the question was finally discussed by the Lower Courts the question was whether there was a customary right to such an easement. Both the District Munsif and the Subordinate Judge found in favour of the defendants. Before the Subordinate Judge the Munsif's finding was attacked on the ground that the custom pleaded was not reasonable and was not certain. He found that the extent of the land over which the plaintiffs would be compelled to give up their cultivation was very small.

(2.) But if what he meant was that the width of the track was very small in comparison with the width of the field, he observed. at the most the track extended over only 1-2 to 3-4 of an acre.

(3.) In addition to this, the Subordinate Judge also found that the custom was reasonable. The next question discussed by the Subordinate Judge was whether the custom found by the Lower Court was certain as to its extent and application. The ground on which the plaintiffs pleader attacked the finding of the District Munsif was that there were discrepancies in the evidence of the defendants witnesses as to the width of the path way or track. The Subordinate Judge explained the discrepancies by saying that it was due to the witnesses not having clear and definite notions of the measurements. Only two witnesses mentioned 10 yards, one witness mentioned that it was 3 yards But there is a preponderance of evidence in favour of 5, 6 or 7 yards width and having regard to this evidence that there was a definite pathway the District Munsif has found that the pathway 5 yards in width would be ample and serve the purpose very reasonably.