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Muhamad HusaIn Rowther and ors. Vs. Muhamad Abubakar Rowther and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai
Decided On
Judge
Reported in2Ind.Cas.427; (1910)20MLJ699
AppellantMuhamad HusaIn Rowther and ors.
RespondentMuhamad Abubakar Rowther and ors.
Excerpt:
custom - customary right to use a tank for bathing, washing and taking water, whether involves a general right of access. - - in view of the finding on the second issue, we must hold that the plaintiffs have failed to show that any rights of theirs has been infringed by the defendants nos......to mr. govindaraghava ayer's contention that the finding of a customary right to use involves a general right of access. there is no reason why a customary right should not be limited in the way, as we read the finding, the subordinate judge intended to limit it.2. on the first issue the judge finds that the property in the tank is in the government and that there has been a dedication to the use of the public in general. it is not the plaintiffs' case that they have any rights as members of the general public. they rely on their customary right only. in view of the finding on the second issue, we must hold that the plaintiffs have failed to show that any rights of theirs has been infringed by the defendants nos. 1 to 11 and that consequently their suit fails.3. we must set aside the.....
Judgment:

1. The finding of the Sub-ordinate Judge upon the second issue sent down is, as we read it, a finding of a customary right in the plaintiffs to use the tank, with this limitation that for the purposes of this use they had a right of access to the tank on the northern and eastern sides, but no right of access on the western side. This being so, there is no customary right in the plaintiffs which has been infringed by the erection by the defendants of the fence on the western side. We cannot accede to Mr. Govindaraghava Ayer's contention that the finding of a customary right to use involves a general right of access. There is no reason why a customary right should not be limited in the way, as we read the finding, the Subordinate Judge intended to limit it.

2. On the first issue the Judge finds that the property in the tank is in the Government and that there has been a dedication to the use of the public in general. It is not the plaintiffs' case that they have any rights as members of the general public. They rely on their customary right only. In view of the finding on the second issue, we must hold that the plaintiffs have failed to show that any rights of theirs has been infringed by the defendants Nos. 1 to 11 and that consequently their suit fails.

3. We must set aside the decrees of the lower Courts and dismiss the suit with costs throughout one set.


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