1. The question is whether the defendants-appellants, who belong to the Kaikolar (weaver) class are entitled to take their deity Kumarasawmi in procession with Sakkili melam (music) along the path (marked A in the plan, Ex. B.) which passes through the middle of the Vellala quarter. The plaintiffs are Vellalars and sue for a declaration that the defendants are not so entitled, the cause of action. being an order passed by the Magistrate under Section 144, Criminal Procedure Code, restraining them from interfering with the defendants Kaikolars carrying their idol in procession.
2. The Munsif found that the path (A) was a public path and does not belong exclusively to the Vellalars, as contended for by them, and he dismissed the suit. On appeal the Judge found that a portion of the path, he does not find which portion, 'was formed by the plaintiff's first witness and otter persons slicing off from their sites for forming a way.' He also found that the street was the property of the Vellalars. He further held that because all people walk on it without distinction and without objection, and because the Union servants cleanse it, the defendants have not acquired the right they claim, and he accordingly allowed the plaintiffs' claim.
3. It is contended before us that on the facts found the Judge should have held that this is a public path.
4. The Judge has found that this path has been used by all members of the public, including the Kaikolars, desiring to use it without any interruption or objection of any kind. There is no evidence as to the origin of the user, nor is there any evidence that the dedication, if made by the Vellalars as the Judge finds, was subject to any conditions. The Village Union clean the path. In a case where it was contended that no dedication ought to be presumed on account of the defective title of the owner who made the dedication, Warrington J. said: The law appears to be this: that the continued user by the public of a way raises a presumption that that way belongs to the public, that it has been dedicated by the owner for the public use for which it has been used, and further that it is not incumbent upon the public to show by what particular owner the road has been dedicated. If dedication is possible, dedication will be assumed.' Vide Farquhar v. Newbury Rural Council (1908) 2 Ch. 586. This judgment was confirmed in Appeal 1909 12 L.J. 170.
5. We are, therefore, of opinion that the path (A) is a public path.
6. As it is a public path the defendants, Kaikolars, have the same rights as the plaintiffs to conduct religious processions through it in a lawful manner Sadagopachariar v. Rama Rao 26 M.k 376. The fact that they have not been conducting such processions is immaterial. The observations of Subrahmanya Aiyar and Bashyam Aiyangar, JJ. in Vijiaraghava Chariar v. Emperor 26 M.k 554 have reference probably to carrying on religious worship as distinct from a religious procession. But if they are intended to apply to religious processions also, then they are opposed to a series of decisions including Full Bench rulings and cannot be followed after the confirmation of the decision in the case of Sadagopa Chariar v. Rama Rao 26 M.k 376 by the Privy Council in the case of Sadagopa Chariar v. Krishnamoorthy Rao 4 A.L.J. 333.
7. We, therefore, set aside the decree of lower appellate Court and restore that of the Munsif with costs in this and in the lower appellate Court.