K.S. Ramamurti, J.
1. The plaintiff is the appellant in this second appeal, and the dispute relates to a right of pathway cutting across his land and marked in red A B C in exhibit A-1, the plan prepared by the commissioner who was appointed to inspect, the site and submit a report with a view to have a proper and adequate appreciation of the points in controversy. The defendants, who are resisting the suit, claim the right of pathway, their case being that the residents of various villages on the west of the Government poramboke cart track marked as G P G T in the plan running in S. No. 49/11 have been going from the west to the Sethu Rastha on the east. The various portions of the pathway have been marked red in the commissioner's plan. Some portions of the pathway pass through Government poramboke land in which a tank exists called Ayyanar Thidal near Sannathi Road cutting Sethu Rastha. As observed earlier that portion of the pathway ABC which is the connecting link on either side of the pathway (between G P C T and Sethu Rastha) cuts across the cultivable land of the plaintiff in which tobacco crop has been raised and at the point A B a fence has been put up by the plaintiff which resulted in the defendants asserting their right of way through A B C and objecting to the plaintiff's putting up the fence. As the plaintiff would not remove the obstructions at the points A and C and restore the pathway the defendants cut the fence with the result that the plaintiff had filed the suit for a declaration of his title to the lands through which the pathway A B C runs and also for a permanent injunction against the defendants from interfering with the plaintiff's right to put up the fence at the point A and C.
2. A perusal of the written statement filed by the defendants shows that they have no precise legal basis on which the right to the pathway was claimed by them. All kinds of imaginable claims were put forward in the written statement an easement of necessity, a right based upon custom and a right of user of the disputed pathway by several villagers including the public at large as a public pathway for people, the general public, at the western end to go to the eastern end either to the Ayyanar Thidal tank or to the salt pans in the east near Sethu Rastha. It may even be mentioned at the outset that a perusal of the written statement shows that the claim is substantially on the basis of a public pathway involving a dedication to the public. I will advert to this aspect a little later.
3. Both the Courts below rightly came to the conclusion that the case is not a case of easement either by grant or of necessity, as there is no question of dominant and servient heritage, that the right claimed is purely a personal right. Both the Courts also rightly came to the conclusion that if at all the right of the defendants is to be upheld it could only be on the basis of a customary right coming within the principle of the decision of the Privy Council, in Lakshmidhar Misra v. Rangalal . It has to be noticed that the burden of establishing this customary right is upon the defendants as they claim a right of way over the lands of someone else. The learned District Munsif, on a consideration of the evidence and in the light of the averments in the written statement, came to the conclusion that on the evidence adduced by the defendants they have totally failed to discharge the burden of establishing the customary right.
4. Even at the threshold I may mention that the learned District Munsif has written a very well considered judgment and in his approach to the problem for decision he has kept in mind, the correct legal principles. He has come to the conclusion that the evidence adduced on the side of the defendants worthless besides being wholly insufficient to make out the customary right. The learned District Munsif also came to the conclusion that the evidence adduced on the side of the defendants did not satisfy any of the conditions ancient, continuous, peaceable, reasonable and certain, and that above all the essential test that the enjoyment during the period in question should be as of right had not been made out. He took the important fact into account that in the village plan or revenue records there is no reference to this pathway and that there is equally no reference to the same in the sale deeds of adjacent lands or adjacent houses. The defendants did not adduce any such evidence and no survey plan or any sale deed has been produced before the learned District Munsif. He also took into account the fact that the pathway claimed by the defendants is a rambling one cutting across several cultivable lands, that the pathway is not uniform and that in several places the pathway is running up and down, the difference in level being about 3 feet and that during the rainy season several portions of the pathway including the portion marked ABC would be completely submerged under water, and people will be using the lands round about indiscriminately and that on the whole the evidence at the most merely established that such user as there was only of a sporadic nature during the fallow season as the owners do not object to people passing through when there was no cultivation in the lands. He also found that several witnesses on the defendant's side have admitted the existence of another pathway (to which fact the commissioner has also made pointed reference in his report) through which the people in the west near, G P C T can go to the Sethu Rastha, though that pathway as admitted by D.W. 3 is a little distant for people of Kanakan Kadu. In fact D.W. 2 has also admitted that there is another pathway about three furlongs north of the suit pathway. The ultimate findings of the learned District Munsif are contained in paragraph 31 of his judgment and they show that having regard to the various extraordinary features of the pathway referred to above the District Munsif was clearly of the opinion that a pathway of the description as claimed by the defendants cannot be upheld on the basis of a customary right as it is very unreasonable, and that there was no justification for upholding that claim to cut across the lands on which the plaintiff has raised some cultivation, especially when there is another pathway serving the same purpose near about the disputed one. On appeal the learned District Judge while accepting the findings of the trial Court that the defendants had not made out a case of easement by grant or of necessity held that the defendants had made out the right based upon custom and dismissed the plaintiff's suit.
5. On a careful consideration of all the aspects of the matter I have reached the conclusion that the decision reached by the learned District Judge cannot be sustained. I am satisfied that the perspective of approach by the learned Judge in considering whether on the evidence a customary right could be upheld is erroneous; he has altogether overlooked the fact whether the test of enjoyment as of right has been satisfied in the instant case. He has also failed to bear in mind the other incidence which have got to be established before a customary right could be upheld. Here again he has not given consideration to the aspect that the right claimed is unreasonable, which aspect the learned District Munsif has dealt with at length. If one may say so the matter has been dealt with in a light-hearted fashion by the learned District Judge and he has not kept in mind the heavy burden which is cast upon the defendants in establishing the right to pathway in dispute especially when there is another pathway though one or two furlongs away. He seems to be of the opinion that for villagers a distance of one or two furlongs is a great thing and that they should be allowed to have the particular pathway merely because the commissioner has noted the existence of a pathway. It must be noticed that the learned District Judge has failed to appreciate that the existence of a pathway cannot be a decisive factors when during the fallow season the land is dry and people pass through more as a case of licence than as of right, and the question has therefore, to be decided not on the mere appearance of a pathway put upon the evidence of user that has been adduced. I am clear in my mind that the evidence adduced on the side of the defendants is useless and wholly insufficient and does not satisfy the requirements of law for upholding the claim based upon a custom, i.e., a customary right.
6. It may be convenient at this stage to refer to the decision of the Privy Council Lakshmidhar Misra v. Rangalal , which contains a discussion of the essential features and incidents of a customary right and when such a customary right could be upheld. The dispute in that case related to the right of the inhabitants of a particular village to use a certain extent of land near the Bengal-Nagpur Railway line as a burial ground which claim was resisted by the other side who wanted to use the site for the purposes of a rice mill. The trial Court negatived the claim of the villagers based upon the theory of dedication and lost grant as it was admittedly not in favour of the public at large. The claim based upon an easement or prescriptive right was also found against as not being pressed. The claim as one of the customary right was negatived by the trial Court as it thought that the evidence was insufficient to establish the existence of. such right. The Subordinate Judge on appeal came to a contrary conclusion in the view that the facts established the reservation of the land as a burial ground amounting to a dedication. The plaintiff's claim based upon a customary right was rejected. In Second Appeal the High Court came to the conclusion which was against the plaintiffs on the question of dedication and dismissed the appeal, with the result that the plaintiffs failed both on the 'question of dedication as well as on the basis of a customary right. On appeal by the plaintiffs to the Privy Council the appellants' claim was upheld only on the basis of a customary right. The Privy Council found that on the evidence it was clear that from time immemorial, generation after generation, the inhabitants of the particular village have been using the disputed land as a cremation ground as of right. It is pertinent to mention that when some argument was advanced based upon Section 100, Civil Procedure Code, on the question that the findings of the Courts below constituted findings of fact binding upon the High Court, the Privy Council observed that the question whether a custom is to be recognised or not was essentially a mixed question of fact and law and that whether a customary right could be recognised or not, is a question of law although the facts upon which the question has to be decided cannot be a matter of appeal beyond the first appellate Court. In other words, it is clear from this decision that the question as to whether on the facts found the conclusion of a customary right could be drawn is a question of law which can well be considered by this Court unfettered by the restrictions of Section 100. The Privy Council has pointed out that in order to uphold such a custom, a right should be immemorial in origin certain, reasonable in nature, and continuous in law and should have been enjoyed as of right.
7. The question in the instant case is whether on the facts it could be held that the defendants had made out all these essential requirements of such a customary right. My attention was drawn to some of the cases in which some of these incidents, reasonableness, enjoyment as of right, the nature of the presumption to he drawn from proof of the enjoyment of the particular right for a period of years, whether, it was as of right or by leave and licence came up for consideration. In the case of acquisition by prescription of a right of easement, a right of way under Section 15 of the Easements Act the enjoyment must be as of right, and so cases which have dealt with the scope of Section 15, acquisition of the right of easement by prescription of a right of way will be relevant in considering the question of a customary right, where also the enjoyment amongst other things must be equally as of right. As observed earlier the written statement (vide paragraph 4) raised all conceivable pleas, an easement by prescription, an easement of necessity, and a customary right. One thing, however, is clear that the defendants claimed the pathway as a public pathway and not for the inhabitants of any particular locality, and while determining how far the defendants, have made out the customary right as restricting the same to the inhabitants of a particular village the principle of the decision in Lakshmidhar Misra v. Rangalal , will have to be borne in mind.
8. I shall first consider the important aspect, namely, whether the enjoyment was as of right. The learned District Judge does not appear to have been alive to this crucial aspect. In paragraph 14 he refers to the oral evidence on the side of the defendant, regarding the period during which the pathway was used. I will deal with this evidence when I consider the question as to whether that evidence establishes that the customary right is ancient and immemorial. So far as this question as of right is concerned, there is rip discussion of any kind whatsoever except a single, sentence in paragraph 19 where again the learned Judge deals with a different aspect altogether, i.e., whether the defendants' pleading or the evidence was pathway in favour of the public in general of a pathway for the inhabitants of the locality. Except this single isolated sentence from the entire evidence it is clear that people of that locality alone used the pathway as of right there is no other reference pr discussion anywhere in the judgment, D.W. 2 is the first defendant in this case and this obviously interested testimony is Referred to by the learned District Munsif to show that the same cannot be accepted. That apart in the context in which that sentence, occurs in paragraph 19, I am clear in my mind that the learned District Judge is referring to this evidence only to emphasise that the pathway is used by the people of the locality and not by the public in general. The next sentence the mere occasional user of the pathway by the public would not necessarily negative the customary rights in the same paragraph emphasises the the same aspect whether the pathway is a public pathway or limited in its kind. The result is there is no discussion of the evidence and there is no finding by the lower appellate Court to be taken note of under Section 100, Civil Procedure Code.
9. In the case of a pathway over a piece of waste land the note of caution indicated in the early case, Shaikh Kohoda Buksh v. Shaikh Tajudin 8 C.W.N. 359, by Banerjee, J., has been followed in all the cases in India. The learned Judge in that case had adverted to the vital difference about conditions existing in England and in India and that in any event a presumption of user as of right could be drawn in England if the right had been enjoyed for a fairly long period while in India such a presumption merely from enjoyment could not be drawn as people in India temperamentally by habit do not object to the villagers going across their waste land as a pathway.
10. Reference may first be made to the decision in Saminatha Mudaly v. Vein Mudaly (1916) 4 L.W. 128, in which it was held that from a long and uninterrupted user for a long series of years the law will presume that the user has been as of right. That decision dealt with a case of a right of certain persons to take water from the tank situated in the land of another person, which right was exercised spreading over a long number of years, 60 to 80. The decision in Shaikha Khoda Buksh v. Shaikh Tajudin 8 C.W.N. 359, was distinguished on the ground of the vital distinction between a right of way over a waste land and a right to take water in a tank situated in another's land which in this country is regarded very valuable. In the case of a right of way one can presume that it would have been with leave and licence, and not as of right but that in the case of a right to take water there cannot be a presumption of leave and licence, and that long user would invariably give rise to a presumption of user as of right. The significance of the observations at page 132 is that from mere user alone a presumption of user as of right could not be drawn regardless of particular nature of the right and other circumstances of the case.
11. I may next refer to the Bench decision in Kunjammal v. Rathinam Pittai : (1922)42MLJ417 , in which the presumption that the user was as of right was drawn on the finding that the plaintiff had proved that his scavenger was cleaning his privy for over thirty years by passing through the defendant's house. That decision dealt with the case of an acquisition of a right of easement under Section 15 of the Easements Act which provides that in the case of a right of way enjoyment should be as of right for the requisite period. Here again the observations of Banarjee, J., in Shaikh Khoda Buksh v. Shaikh Tajudin 8 C.W.N. 359, that in the case of a right of way there will be no presumption by-mere proof of enjoyment for a particular period and that the plaintiff must establish that the user was as of right and that the inference to be drawn would depend upon the nature and character of the land, the friendship or relationship between the parties and such other considerations were referred to. The decision of the Calcutta High Court was distinguished and the principle enunciated in Saminatha Mudaly v. Velu Mudaly (1916) 4 L.W. 128, referred to earlier was followed, in the view that normally persons would not allow scavengers to pass through their house arid if that happened for a number of years, it would not have been with leave and licence but would have been only as of right. This decision shows that no presumption de jure could be raised, from mere long enjoyment and that all the circumstances of the case should be taken into account and in particular, the particular right that is asserted. The conditions and circumstances of the case to be taken note of undoubtedly include the habits of the people in this country that they do not generally object to the residents of the village using a waste land as a pathway when the land is not valuable.
12. In. Ndsiruddin v. Deokali : AIR1929Pat124 , this aspect that the burden is upon the plaintiff to plead and prove that the user must be as of right was emphasised with particular reference to the law in England and in India. Courtney-Terrell, C.J., stated thus at pages 125-126:
In English law the exercise of a right of way and similar positive easements for a prolonged period gives rise to the presumption that such exercise was 'of right', that is to say, it is presumed that the right of passage was exercised without any permission, express or implied, on the part of the owner of the servient tenament. This is because social conditions and the nature of the landed property in England are such that landowners are particularly jealous of their exclusive right and the familiar appearance of the notice boards to be seen in England bearing the inscription 'trespassers will be prosecuted' is an indication of the views held by the owners of property. Accordingly, it is to be presumed that if the owner of the dominant tenement has for a long period passed over the servient tenement that he did it from the beginning with a claim of right, for it is unlikely that if he had such a right that the owner of the servient tenement would have allowed him to pass. In India, however, and it may be in other countries where such views of the exclusiveness of landed property do not prevail a mere period of long user will not give rise to the presumption. It is customary for the owner of a piece of waste land not to raise any objection to the passage of strangers over such land. It was pointed out by the Calcutta High Court in the leading case of Shaikh Khoda Buksh v. Shaikh Tajudin 8 C.W.N. 359, that in such circumstances mere long user gives rise to no such presumption as is to be inferred in England and that whether or not long user creates the presumption that its beginning was founded on a claim of right will depend upon the locality, the customs of the people and it may be, the relationship between the respective owners of the dominent and servient tenements.
This view was followed in Lambodar v. Rdmesh Chandra : AIR1958Ori248 . In that case the plaintiffs sought a declaration of a right of pathway over the fallow lands of the defendants relying upon the user for more than thirty years. The District Munsif dismissed the suit holding that the plaintiffs had not proved user as of right. But on appeal this view was reversed by the Subordinate Judge and the plaintiff's suit was decreed. The High Court reversed the decision and restored that of the District Munsif, dismissing the plaintiff's suit in the view that the decision of the Subordinate Judge was contrary to law and that he did not appreciate correctly the principle laid down In the several cases with regard to the inference to be drawn from long user in the case of a right of way over a vacant land. The learned Judge observed that in India if a land lies fallow people generally have a weakness to resort to a short cut to a particular place using the vacant land as a pathway, and that the owner does not generally object and the user is really due to leave and licence and not as of right. From this decision it is clear that a person claiming a right of way should prove that the user was as of right, and that he could prove that by showing that at some time there was obstruction but nevertheless he continued to use; and that generally in the case of a right of way according to the conditions in India the relationship of the parties and the circumstances of the case, the presumption is that the user is permissive. I may next refer to the Bench decision of the Patna High Court in Salina Jitendra Lal v. Ram Charan : AIR1959Pat475 , in which it was held that it was wrong to say that merely because there was no cultivation of the disputed land there was a presumption either in law or in fact that the user of a pathway over the land was more of right and because of the special circumstances prevalent in India, mere user for a long period of property will not give rise to the presumption that the claim as a user was as a matter of right. In that case the District Munsif dismissed the suit holding that the plaintiff had not proved that the user of the pathway was as of right. But the lower appellate Court came to a contrary conclusion. The High Court reversed this decision and restored that of the trial Court in the view that the perspective of approach of the lower appellate Court was erroneous in law calling for interference in second appeal. The lower appellate Court in that case while upholding the right of pathway observed as follows:
In my opinion the proof of non-interference as shown by the plaintiffs evidence is proof of the fact in this case that the user was as of right and non-interference cannot be considered to be mere granting of permission as has been held by the Munsif. The non-interference not only amounted to a permission but also amounted to non-exercise of a right that the owner had of cultivation.
This reasoning was considered by the High Court to be perverse as it proceeded upon an erroneous understanding of the law laid down in the relevant decisions. In that case too an important circumstance which the lower appellate Court failed to notice in reaching the finding (as in the instant case) was that in the survey record of rights and Government records there was no mention of the customary right of pathway over the disputed land. This decision followed the decision of the Privy Council in Lakshmidhar Misra v. Rangalal , and held that the question of a customary right is not a question of fact but is essentially a mixed question of fact and law, justifying interference in second appeal, if the matter is not considered by the lower appellate Court from a correct standpoint.
13. My attention was also drawn to the Bench decision in Ramachandra v. Hari A.I.R. 1929 Bom. 144, in which it was emphasised that the burden of proving that the enjoyment was as of right is upon the plaintiff and that in questions regarding a right of way the Court should consider the character of the land, the relations between the parties and the circumstances under which the user took place to decide whether the user was as of right. In other words this decision emphasises that from mere user no ready reference that it was as of right should be drawn. The point of importance to notice in this decision is that when the plaintiff claims a pathway from one place to another passing through the lands of other people the presence of the owners of the intermediate land would be necessary to establish the right of way. The fact that the land in question was not put to use throughout the year but only during intervals, and that the cattle were not using the pathway during rainy season and that there was also another route, indicated that the user was not as of right.
14. Mr. T.R. Srinivasan, learned Counsel for the appellant, has relied upon the Bench decision in G. Rai v. G. Devi : AIR1960Pat498 , in which again the same view was taken that the mere user of a piece of waste land as a passage does not give rise to a presumption in law that the claim as to user was a matter of right. The next decision to which reference must be made is the decision in Tukaram v. Sonba : AIR1959Bom63 , in which again it was observed that having regard to the habits of the people of this country, it would not be right to draw the same inference from mere user that it was as of right. This case dealt with a case of a right of way and at page 65 the decision in Kunjammal v. Rathinam Pillai : (1922)42MLJ417 , was distinguished on the ground that considerations which apply to a right for a scavenger to pass through another house would not apply to a mere right of way over the waste land, that in the former case the presumption migh well be drawn that the user was as of right while no such presumption could be lightly drawn in the latter case. As a customary right there is no pleading even in the written statement in this case that the pathway was used as of right which shows that this aspect was not present in the mind of the defendants at that stage. On the question of actual user the learned District Judge had made a very short work and has neither-considered nor adverted to the criticism of the learned District Munsif who saw these witnesses and observed their demeanour and who ultimately rejected their evidence as worthless. It is a very unsatisfactory way of disposal, hardly fair to the learned District Munsif or to the litigants concerned, especially when it is a reversing judgment.
15. (After discussing the fact of the case His Lordship proceeded as follows:)
Further a reading of the evidence of D.Ws. 5, 6 and 7 assuming what they say is true shows it is wholly insufficient in law to make out an ancient, immemorial, user and user as of right. For all these reasons, I find it impossible to accept the view taken by the learned District Judge. He has totally failed to keep in mind that in such cases it is of great significance for the Court to consider and apply its mind to the quality and the quantity of the evidence in particular.
16. I am also of the opinion that the claim of the defendants has to be negatived as it does not satisfy the equally important condition of reasonableness. It will be a very unreasonable custom for people to walk through lands in which the owner has raised cultivation as in this case, paddy or tobacco, especially when there is another pathway about a few furlongs further. In a village connecting two places which are of a distance of two to three miles, for the villagers, a distance of three or four furlongs is certainly not a great thing, and when there is such a pathway it is not reasonable to allow them to have the suit-pathway, because the distance is reduced by a few furlongs. On this aspect my attention was drawn to the decision of Umamaheswaram, J., in Venkadu v. Subramaiah (1954) 2 M.L.J. 83 : A.I.R. 1954 Andh. 54 , in which the learned Judge has observed that a custom to pass over cultivable lands is certainly unreasonable and cannot be recognised by the Courts. The learned Judge has followed the decision of the Patna High Court in Baldeo Bind v. Abdul Aziz : AIR1948Pat425 , in which it was held that a customary right to pass through land bearing valuable crops should fail on the ground that the custom was unreasonable. The Bench decision in Bdldeo Bind v. Abdul Aziz : AIR1948Pat425 , is important in that there also the right of way was claimed more as an easement, as in this case, than as a customary right, and that it is for the party claiming the right to establish that in spite of indications of commons ense to the contrary it is reasonable for large body of men to pass through agricultural lands belonging to another and in which the owner at considerable cost, energy and expense has raised valuable crops.
17. Learned Counsel for the respondents drew my attention to some of the cases, Palaniandi Thevan v. Puthirangonda Nadan I.L.R. (1897) Mad. 389, in support of his contention that to establish ancient, immemorial user, enjoyment for no particular period is necessary and that even user for twenty years is sufficient. It is unnecessary to refer to those cases as the inference of ancient, immemorial user has to be drawn from the particular facts of each case.
18. Learned Counsel for the respondents placed considerable reliance upon the Bench decision of this Court in Ratanchand Chordia v. Kasim Khaleeli I.L.R. (1964) Mad. 979, a case arising under Section 15 of the Easements Act in which it was observed that while there are no infallible tests, it would not be improper for any Court to draw the inference from long user as such that it was rather as of right than not. The observations in that judgment will have to be understood in the context of the particular right which was claimed as an easement in that case. The dispute there related to a right of way across a building, and having regard to the particular right the case would clearly come under the principle of Saminatha Mudaly v. Velu Mudaly (1916) 4 L.W. 128, and Kunjammal v. Rathinam Pillai : (1922)42MLJ417 , in which, as observed earlier, the distinction is drawn between a mere right of way over waste land and other rights which are regarded as valuable and if user is proved in the later type of cases a presumption of user as of right may well be drawn. This Bench decision, in my opinion, is not authority for the position that regardless of all considerations the nature of the right, the relationship between the parties and the surrounding circumstances of the case, an inference of user as of right should be drawn from mere enjoyment for a particular period.
19. In this case I have no doubt whatsoever that judged by any test the inference of law, namely, the customary right, cannot be drawn. The pathway, if it had existed, would certainly have been mentioned in the village plan and village records and again it would have been mentioned when sales of lands near about the disputed pathway were effected. Further the pathway that is claimed is a rambling pathway running through lands of various persons and a substantial portion runs through Government poramboke land. In such a case unless the right of pathway is admitted by the owners of those lands a customary right cannot be upheld as it would be recognition of a precarious right. Further the pathway has admittedly ups and downs, water courses in the middle and during rainy days it is very difficult to pass through. Again, during the summer days when the lands are fallow people do not pass through this pathway alone, but pass through any field as they like which is fallow. This is a matter of admission. Further, if the pathway had been in existence the owner of the lands who has been raising cultivation and crops on either side of the pathway would have surely put up a fence to prevent valuable crops being damaged by the people walking through and cattle. The absence of any such fence, in my opinion, is a decisive circumstance leading to the conclusion that it is only during the summer that people have been passing through fields. That emphasises that the user is not as of right but the owner acquiesces in such user because it does him no harm. During cultivation season the villagers are not allowed to pass through which means enjoyment is not as of right.
20. For all reasons I have no hesitation in agreeing with the view taken by the learned District Munsif. The decision of the District Judge is accordingly set aside. The plaintiff's suit is decreed as prayed for. The parties shall bear their own costs. Leave refused.