1. After hearing the parties in this appeal we have come to the conclusion that the appeal ought not to be decided without determination of some further matters by the learned District Judge. Notwithstanding that the defendants claimed actual title to the land in dispute, the case was fought out upon the issue whether or not the defendants had a right to soak their cloth and dry it on the property in dispute which has now been found to be the property of the plaintiffs. It seems to us that the learned District Judge was of opinion that no Court under any circumstances could find that a customary right existed where the evidence in support of the custom consisted of user. In this we think the learned Judge was wrong. In our opinion, it is open to the Court to infer from long enjoyment not exercised by permission, stealth, or force, the existence of a custom. Of course, if the Court after considering the evidence came to the conclusion that the alleged custom was unreasonable or that the privilege was enjoyed as the result of permission given or that it was exercised by stealth or force, he would be equally entitled to find against the alleged custom vide Kuar Sen v. Mamman 17 A. 87. We accordingly refer the following issues to the lower appellate Court:
(1) Does any custom exist by reason of which the defendants are entitled to exercise the right of soaking and drying their cloth on the plaintiff's property?
(2) Over what portion of the land in dispute are the defendants entitled to enjoy this right?
2. In determining these issues the Court will have regard to the remarks expressed above. If the Court finds that there was a custom extending over some portion but not over the whole land in dispute, the Court, by means of a map or otherwise, will clearly define the area over which the right exists.
3. The Court will also be entitled to take into consideration the reasonableness of the alleged custom. For example, we consider that it might be unreasonable for tenants to claim to prevent a zemindar using a large piece of land for building, agricultural, or other purposes, merely because without interference on the part of the zamindar they had for many years used the land for the purpose of drying cowdung cakes. In the present case we think that the Court might, in conjunction with the evidence of user, consider such matter as the importance of the industry, the length of time it has been established and the possibility or impossibilities of carrying on the industry elsewhere if the land is turned into a grove. The Court will be entitled to take any additional evidence it finds necessary; on return of the findings 10 days will be allowed to file objections.
4. On return of the finding Mr. Justice Richards delivered the following.