1. The case set up in the plaint is that the well was not the private property of the defendants, but was situated in poramboke land and was used by the plaintiffs, and those on whose behalf they sue, as a matter of right for the past ninety years. This would indicate that the plaintiffs claimed what is called a 'customary right' such as is referred to in Section 2 (b) of the Indian Easements Act, 1882,' and in Channanam Pillay v. Manu Puttur 1 Mad. L.J. 47 . The Subordinate Judge found that the well belonged to the defendants, but that it had been used by the plaintiffs and those on whose behalf they sued, openly and without obstruction, for upwards of thirty years, and he, therefore, held that they had established a customary easement over the well. The plaintiffs' claim was not put forward in the plaint as one of easement, and there is no allegation or issue or clear finding as to their possession of a dominant heritage entitling them to the easement.
2. Without a dominant heritage there can be no easement.
3. We fear that the Subordinate Judge has not clearly distinguished in his mind a customary right from a customary easement.
4. No fixed period of enjoyment is laid down by law as necessary to establish a customary right. The character and length of enjoyment which are necessary for such purpose have been, in our opinion, correctly laid down in Kuar Sen v. Mamman I.L.R. 17 All. 87.
5. We must, therefore, ask the Subordinate Judge to submit findings on the evidence on record on the following issues, viz.:
(1) Whether the plaintiffs and those whom they represent have a customary right to use the water of the well as claimed in the plaint.
(2) If not, whether the plaintiffs and those whom they represent are the holders of a dominant heritage in the village and as such have a customary easement ( Section 18, Easements Act) to use the water of the well as claimed in the plaint.
6. The Subordinate Judge is requested to submit his findings within a month from the date of the receipt of this order. Seven days will be allowed for filing memorandum of objections after the findings have been posted up in this Court.
7. [The Subordinate Judge made his return as follows:
Plaintiffs' vakil gave up the first issue and confined himself to the second issue, He contends that the dominant tenement to which the customary right of easement is attached is the possession of residence by the plaintiffs and those whom they represent. I think the contention must prevail. Since it appears from the evidence of the plaintiffs' witnesses that all the residents of Kokilapuram, except Neechars or Pariahs and Pallars, have been using the water of the well, plaintiffs by possessing houses and becoming residents of Kokilapuram, have acquired the right of easement to use the water of the well.
8. I therefore find the first issue in the negative and the second issue in the affirmative.]
9. This second appeal coming on for final hearing, the Court delivered the following
10. We accept the finding and dismiss the second appeal with costs.