1. This appeal arises out of a suit brought by the plaintiff for a declaration that he is the owner of plot 410, which is jungle, situated in village Saraiya in the Jaunpur district, and that the defendants have no interest in it. The defence was that the village originally belonged to the ancestor of the defendants who sold it to the plaintiff's ancestor exempting jungle and waste land. The plot in dispute is the remnant of a jungle, part of which has since become cultivated land. It is pleaded that the plaintiff was not in possession of the plot in dispute at any time within 12 years before the suit and that the defendants have been in proprietary and adverse possession thereof for a considerable length of time. Lastly, it is claimed that the defendants and their ancestors have been grazing their cattle in this jungle and other jungles in the village and taking wood therefrom, that it is not open to the plaintiff to convert the plot into cultivated land and that the plaintiff is bound to leave the jungle intact for the benefit of the defendants. The Courts below have overruled the defence as regards the defendants alleged proprietary right acquired by adverse possession or independently of it. The defendants have been found to be no heirs of the original proprietor who sold the village to the plaintiff's ancestor. The Court of first instance declared their right to graze their cattle in any part of the land in suit which is still jungle. The plaintiff's right of ownership, subject to the above reservation, was declared. The plaintiff-appellant acquiesced in the decree of the trial Court but the defendants appealed. The lower appellate Court modified the decree of the trial Court declaring the defendants':
right to graze cattle and collect 'dhak' wood in the portion of the plot which still retains the character of a jungle.
2. The plaintiff, has appealed to this Court.
3. The defendants attempted to establish their long and continued possession of the plot in dispute as heirs of one Matai, who is noted in settlement papers as the person in possession of it (qabiz). The lower appellate Court has found that Matai was a 'sadhu' occupying a hut (kuti) in the jungle and that the plaintiff 'out of regard for him allowed him the use of the jungle.' It has concluded that Matai's 'rights in the jungle were merely personal.' The respondents' case based on their proprietary right and adverse possession failed and has not been pressed before me. The judgment of the lower appellate Court recognising the defendants right to take 'dhak' wood is cryptic and the ground on which it is based is not intelligible. The whole question has been disposed of in the following sentence:
But the appellants are on stronger ground when they allege that they have a right to graze cattle and collect 'dhak' wood in the jungle
4. The question whether a party has an indefeasible right to do something on the land found to belong to another is a mixed question of law and fact. The witnesses are to prove facts or acts done and it is for the Court to affirm or negative the existence of an alleged right, on such facts being considered in relation to the rule of law applicable to the question. I am unable to ascertain from the judgment of the learned Judge what facts or acts done by the defendants and for what length of time are, in his opinion, established by evidence nor has he referred to the rule of law under which the defendants can be said to have acquired the right to take 'dhak' wood from the portion of the land which is still jungle. The judgment is equally vague as to whether the defendants can insist on the jungle being maintained for their benefit as they claim. Under these circumstances I called upon the learned counsel for the defendants to refer to the rule of law and to the evidence he relies on. In formulating his case he based it on a customary right of easement which he contends, is established by the evidence of one of the defendants Ram Narain Singh, and the defendants' witnesses, Ram Niranjan Singh and Beni Singh. Ram Narain Singh, defendant, states that his family have always cut wood without the permission of the plaintiff and that the plaintiff never had any wood cut in the jungle. Ram Niranjan only states generally that the defendants have always been in possession of the jungle and that the plaintiff never had any sort of possession. Beni Singh states that the defendants have been in possession of the jungle, they graze their cattle and take wood from it, that the village people also graze their cattle in the jungle but with the defendants' permission. This is the whole of the evidence on which a case of customary right of easement can be based. No such right was pleaded in the written statement, the defendants claiming only proprietary right by adverse possession. The evidence noted above is directed to proving a case of that kind which has, however, been negatived by the lower Courts. The lower appellate Court has nevertheless found that the defendants have a right to take 'dhak' wood from the jungle as they have hitherto done.
5. A part from adverse possession or prescriptive easement which is not relied on before me and which has to be established in term of Section 15, Easements Act, one or more inhabitants of a village taking wood from the landlord's jungle without the latter's knowledge cannot, by so doing for any length of time acquire a right to cut and appropriate wood contrary to the wishes of the latter. Similar acts done with the permission or acquiescence of the owner being referable to a license express or implied cannot likewise confer a right as against him. Customary easements are provided for by Section 18, Easements Act, which enacts that 'an easement may be acquired in virtue of, a local custom' and that 'such easements are called customary easements.' Illus. (a) and (b), appended to that section explain what is the character of this class of easements. Both are cases where any one residing in a village or town is entitled to do something with reference to another's property which in the absence of a local custom to the contrary would be unlawful. Such custom has the force of law in that village or town empowering on the one hand the inhabitants thereof to do what they have apart from the custom no right to do it, and on the other hand restraining the owner of a property affected by such custom to retrain from objecting to what he would but for the custom be entitled to object to.
6. As observed in Kuar Sen v. Mamman  17 All. 87 atp. 192:
A Court should not decide that a local custom such as that set up in this case, exists unless the Court is satisfied of its reasonable-ness and its certainty as to extent and application and is further satisfied by the evidence that the enjoyment of the right was not by leave granted or by stealth or by force and that it had been openly enjoyed for such a length of time as suggests that originally, by agreement or otherwise the usage had become a customary law of the place in respect of the persons and things which it concerned.
7. The defendants repudiate the suggestion that they took 'dhak' wood with the plaintiff's consent. Therefore they took it by force or by stealth. They claim the right to take it to the exclusion of everybody else. Other inhabitants of the village graze their cattle in the jungle with the permission of the defendants, according to a witness of theirs and not because they have a right to do so under a local custom. We are, however, concerned only with the defendants' right to take wood from the jungle. As regards reason, ableness of the defendants' claim it should be observed, there is no limit to the quantity of wood they can take from the jungle. The evidence refers to the defendants having a right to 'cut' wood from the jungle. If they be assumed to have the 'right to do so they can cut the whole jungle. The learned District Judge has declared the defendants' right to 'collect' wood from the jungle. This may mean that the defendants have merely the right to take dry wood lying in the jungle. In any case the evidence does not if believed establish any right of customary easement which the defendants can enforce against the plaintiff.
8. In the view of the case taken by me, this appeal is allowed, the decree of the lower appellate Court is set' aside and that of the Court of first instance is restored. The defendants-respondents shall pay the plaintiff's costs of this' Court and of the lower appellate Court.