(1) The defendants are the appellants in this second appeal. The suit was for a permanent injunction restraining them from obstructing the plaintiffs from their using a channel marked A B C D in the plaint sketch over the lands for the defendants, for a mandatory injunction and other ancillary reliefs. The plaintiffs are the present owners of two survey fields S. Nos. 294/3 and 294/5. They became entitled to the same under three sale-deeds Exs. A-1 to A-3 in the year 1959, and their predecessor-in-title became entitled to the land under assignments by the Government in 1950. Ex. A-6 is an order directing the assignments. It is dated 27th April 1950 and the order states that the lands were temporarily assigned to the persons noted for raising unirrigated dry crop subject to the conditions set out therein. One of the conditions is that there should be no wet cultivation on the lands assigned unless and until the grantee obtains a permit on application to the Executive Engineer, Periyar Division, Madurai. The condition provides that even if dry cultivation was not possible wet cultivation was not permission, either directly or by percolation. The actual grant pursuant to the order embodies the same condition.
In the plaint though originally there was no specific basis for the claim, by way of an amendment the right to have a channel over the lands of the defendants, namely, S. F. Nos. 294/1 and 294/2 was based as an easement of necessity or a customary easement. The claim to have a channel over the land of the defendant's was not based on any other right. The learned District Munsif observing that it was an admitted fact that the suit survey numbers have no other source of irrigation except by the suit channel and finding that the evidence adduced on the side of the plaintiffs clearly showed that the suit lands were irrigated only with Periyar water running along the suit channel over the lands of the defendants, held in favour of the plaintiffs. It must be remarked here itself that the decision does not specify on what right the claim has been found, whether as easement of necessity or as customary easement.
(2) On appeal by the defendants the learned Subordinate Judge makes an entirely different approach. It may be taken as a finding of fact of the Courts below that the period during which the plaintiffs have been irrigating their lands through the channel on the defendants' lands was about 9 or 10 years. The learned Subordinate Judge himself observes that it was fairly clear that the lands of the plaintiffs were not entitled to be irrigated with Periyar water except with the permission of the Executive Engineer and that it appeared that the land assigned was irrigated in an irregular way with Periyar water through the channel on the defendants' lands. The right having been enjoyed for about a period of ten years only, naturally the plaintiffs have not based any claim to the channel on any easementary right. The learned Subordinate Judge observes as follows:
"The counsel for the plaintiffs-respondents made it clear that the right claimed by his clients was based purely on custom. He conceded that they gave up the basis of the claim founded on easement of necessity and customary easement".
It is further observed that there can be no scope for nay right of easement of necessity as it was not claimed that he right claimed was available and was exercised at the time of the assignment so as to attract the operation of S. 13 of the Indian Easements Act. However, the learned Subordinate Judge considers that as the period of user required for the acquisition of a customary right is not the period of necessary for acquisition of an easement right, customary rights being saved by reason of S. 2 (b) of the Indian Easements Act, having regard to the facts of the case, the period of ten years of user found in the case was sufficient and reasonable to give a customary right to the plaintiffs to take water through a channel running on defendants' lands.
(3) Learned Subordinate Judge relies on this part of the case on the decision reported in Venkataramaniah v. Subbaramayya, . I do not see how that case has any bearing on the facts of this case. There the plaintiffs had for several generations past been irrigating their lands which were lower in level than that of the defendants by water running over the defendants' lands and the action was founded upon immemorial right, custom and prescriptive title, as a right of easement and under a lost grant. It may be noticed that all the rights on which the claim could be based were rolled up. The principal question that was raised in defence was that he plaintiffs could acquire any prescriptive right as the water in question was not flowing in a defined stream and S. 17(c) of the Easements Act was a bar to the acquisition of any easement right as it was surface water. The second point raised in that case was the plaintiffs had an alternative source of irrigation and that, therefore, there was no question of an easement of necessity. On the facts and the law applicable, the learned Chief Justice found that in the circumstances of that case there was no room for doubt that water flowed in a defined tract and was not surface water and as such there was no scope for attracting clause (c) of S. 17 of the Easements Act. On this the first contention of the defence was rejected.
As regards the second contention it was found that the alternative source could not irrigate the entire extent of land and in those circumstances, although the right may not amount to an easement of necessity, still the plaintiffs could insist on the use of that water on the foot of customary right which could well be de hors the Indian Easement Act. It was noticed that it had been affirmatively established by the plaintiffs in that case that they have bee enjoying this right for a long number of years without interruption. It was observed that it followed that he respondents-plaintiffs in that case were entitled to the use of the water, even assuming that it could not be characterised as an easement of necessity. The facts of that case are entirely different and can have no application to the present case. Here admittedly the user is only for a period of ten years.
(4) But the more serious objection to banking the claim in this case on a customary right is this. Section 2 of the Indian Easements Act, 1882, saves from the operation of the Indian Easements Act under clause (b) "customary rights" this way:
"any customary or other right (not being a license) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property".
It must be noticed that customary rights which are taken out of the application of the Indian Easement Act are such rights which do not relate to any other immovable property of the claimant. The right claimed in this case is in respect of the other immovable property of the claimant and the right claimed is one that will come under the definition of easement. The right claimed in this case will not, therefore, be a customary right as provided in S. 2(b). The characteristic of customary rights is that they are possessed irrespective of any other immovable property and they do not contemplate the existence of two different tenements, if a claim could be sustained on custom, the plaintiff must establish and prove all the essential requisites for a valid customary right. In this case, there is no claim on the basis of a customary right. The plaint does not refer to any "customary right". On this short ground the plaintiff has to fail. A right based on custom has to be inferred form facts and so has to be pleaded and proved.
As observed in Baba Narayan Lakras v. Saboosa, 1943-2 Mad LJ 186: (AIR 1943 PC 111), by the Judicial Committee at p. 188 (of Mad LJ): (at p. 113 of AIR) :--
"The burden lies upon one who sets up a custom in derogation of the ordinary rights of another as the owner of immovable property to give clear and positive proof of the user relied upon to substantiate the custom; and, in the present case, the proof does not extend to any period before 1910."
As regards the period requisite for acquiring a right by custom their Lordships proceeded further and observed:
"While these judgements both show that in India a custom need not be immemorial, the requirements of long usage is essential since it is from this that custom derives its force or governing the parties' rights in place of the general law".
The plaintiffs in this case claim a right to take a channel over the defendants' lands. This is purely a personal and individual right. How it can be claimed as custom one is unable to understand. The true character of a customary right is referred to by their Lordships of the Judicial Committee in the decision in Laksmidhar Misra v. Rangalal, ILR 29 Pat 1 at p. 9: AIR 1950 PC 56 (at p. 59), as follows:
"A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large Fitch v. Rawling, (1795), 2 HBI 393. The custom, if established, makes the local law of the district and it creates a right in each of the inhabitants 'irrespective of his estate or interest in any particular property' (underlining (here into ' ') is mine).
Proceeding further their Lordships pointed out (at p. 10 (of ILR Pat): (at p. 59 of AIR) :--
"What the Courts have required of a custom, if the law if is to uphold it as a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use. It is by these tests that the appellants' claim in this case must be tried".
True, as contended by learned counsel for the respondents, it may be taken to be settled now that no fixed period of enjoyment is laid down by law as necessary to establish a customary right. But certainly if a person cannot acquire a right of easement unless there was user for 20 years, he cannot get over it by pleading a customary right as in this case. Cases have held that even in respect of a customary easement under S. 18, normally the period of user must be at least the prescriptive period of 20 years.
(5) In the result, the decision of the learned Subordinate Judge finding a customary right in favour of the plaintiffs not pleaded and not proved, and just on the basis of an enjoyment of ten years cannot be sustained. It may also be noticed that one of the requisites of a valid custom is it must be reasonable. In this case the very terms of the grant under which the plaintiffs' title is based prohibits the use of Periyar water except on permission. The user in this case as per the finding of the Courts below is irregular. It is surprising that in spite of this the learned Subordinate Judge without analysing the essentials of a valid custom should have granted a decree for mandatory injunction on the basis only of enjoyment for a period of just ten years.
(6) In the result the second appeal succeeds and the plaintiffs' suit is dismissed. The appellants are entitled to costs throughout. No leave.
(7) Appeal allowed.