RUSHI BHIKU Vs. RUSHI SHEORAM

JUDGEMENT

(1.) A portion measuring 75 acres of the plaintiff's absolute occupancy holding has been recorded at the recent settlement of the village in which it is situated as gair mumkin land be cause the defendants, who form the community of Kumbhars of the village, make use of the earth of that portion for making pots. The lower appellate Court has decreed the plaintiff's claim on the ground that the customary right to appropriate the earth of the said portion is not proved to be reasonable even though the length of period of the enjoyment as found by the Court is 20 ears. The learned District Judge is right in holding that the right claimed by the defendants is not in the nature of an easement qcquird by custom. The defendants-appellants accept this finding as correct, but contend that on the very findings arrived at by the Court, it should have been held that from the length of continued user for 20 years a lawful grant of the right could be presumed in the circumstances of the case.

(2.) THERE is a distinction between a customary right and a customary easement. For the acquisition of a customary right no particular period of enjoyment need be proved. What the defendants pleaded was a local custom which entitled them to commit on plaintiff's land acts, which if there had been no such custom, would be acts of trespass. In order to establish a customary right to do such acts on the property of another, the enjoyment must have been so acquiesced in by the owner as would give rise to the inference that originally by agreement or otherwise the usage (of which the repeated and open enjoyment is only a proof) had become a customary law of the place in respect of the persons and things which it concerned. Whether, from the proved or continued user for 20 years, such an acquiescence on the part of the owner, as would give rise to a presumed grant, could be inferred would be a question of law on which it is open to this Court to entertain a second appeal, I think that the period of 20 ye in is sufficiently long to enable this Court to draw the legal inference that the exercise of the right to appropriate and carry away the earth for making pots must have had a lawful origin in a grant; otherwise, the owner would not have kept quiet over it; surely he would have protested against such user. In a case decided by the Patna High Court in Bikoo v. Narayan A.I.R. 1924 Patna 303, the right of the inhabitants of a village to take earth from apiece of waste land to repair their houses after inundations was affirmed as being not unreasonable. In Mohidin v. Shivlingappa [1899] 23 Bom. 666, where the plaintiff sued for an injunction to restrain the defendants from exercising the customary right which they, as members of a certain section of the Mahomedan community, had been for many years in the habit of exercising by burying their dead near the darga in plaintiff's land, it was held that such a right was recognized as a local custom, especially as it was confined to a limited class of persons and a limited area of land. The following observations sufficiently meet the learned District Judge's objection against the custom pleaded in the present case being regarded, as reasonable:

(3.) IT is also argued, and I think rightly, that the user which is proved in this case is not in the nature of a mere-license but is a license coupled with a grant. The right to excavate the dearth and to carry it away for the purpose of making pots would, in my opinion, be in the nature of a benefit to arise out of land or amount to an interest in land, and as such it would make the license irrevocable at the option of the owner of the land.