P.R. Gokulakrishnan, J.
1. Second Appeal No. 1644 of 1967 arises out of O.S. No. 732 of 1962, while S.A. No. 633 of 1967 arises out of O.S. No. 735 of 1962. The plaintiffs in O.S. No. 732 of 1962 and defendants in O.S. No. 735 of 1962 who are the self-same persons, are the appellants in the above second appeals.
2. O.S. No. 732 of 1962 was a suit by the appellants for a declaration that the suit property belonged to them and for an injunction restraining the respondents from interfering with their possession. There was also a prayer therein for directing the respondents to restore the fence put up by the appellants to demarcate the boundaries of their enjoyment in respect of the suit property, by means of a mandatory injunction.
3. O.S. No. 735 of 1962 was filed by the first and sixth defendants in O.S. No. 732 of 1962 both for themselves and on behalf of the villagers of Kalingarayanpalayam Palayur, Mettunasuvampalayam, Erode Taluk, against the plaintiffs in O.S. No. 732 of 1962 in respect of the very same property for a declaration that the plaintiffs and the villagers are entitled to use the suit property as 'oor natham' and for granting a permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the same.
4. The main dispute is only in respect of 75 cents of land in inam S.F. No. 7-B of the said village. The plaintiffs in O.S. No. 732 of 1962 claimed to be owners of inam S.F. No. 7-B and other lands and to have derived title to the said property by virtue of a sale deed of the year 1938 and to have been in enjoyment of the entire land including the Suit land in S.F. No. 7-B by putting up a fence thereon. According to them, the defendants were attempting to enter the land and commit nuisance and have also removed the fence. Hence that suit. The defendants in O.S. No. 732 of 1962, who can be considered more or less the same as the plaintiffs in O.S. No. 735 of 1962, refuted the allegations and stated that the suit property belonged to the entire villagers of Kalingarayanpalayam Palayur, that the villagers were using the property as 'oor natham' from time immemorial as per custom and usage of the locality, that such use by the villagers was for more than five hundred years, that the entire villagers were using the same for storing manure, household waste, ashes and also unwanted things, that the villagers used to bury dead children of a few months old in that land, that there are foot-path and cart-track leading to the village on the suit property, that the appellants were only in possession of 6 acres in S.F. No. 7-B, that the rest of the southern portion of S.F. No. 7-B belonged to the villagers, and the respondents have perfected their right by prescription and adverse possession and that they are entitled to the suit property as 'oor natham.'
5. Identical allegations as in the written statement in O.S. No. 732 of 1962 formed part of the allegations in the plaint in O.S. No. 735 of 1962. The written state-merit in O Section No. 735 of 1962 contained more or less the same averments as in the plaint in O.S. No. 732 of 1962. Both the suits were tried together, on properly framed issues.
6. The trial Court on a discussion of the evidence on record, came to the conclusion that 75 cents in inam S.F. No. 7-B of the suit village belonged to the villagers, that out of the total extent of 13.12 acres, the cultivable portion in the said survey number seemed to be only 8.82 acres as per Exhibit B-6, and that even though Exhibits A-4 and A-5, sale deeds, recite an extent of 13.12 acres, the appellants were actually given delivery of possession of only 8.32 acres, which alone is the cultivable portion in the land. It is unnecessary for me to discuss all the documentary and oral evidence considered by the Courts below for the purpose of arriving at the conclusion that these 75 cents of land belong to the villagers (respondents) and that it is for their own use. Suffice it to say that the trial Court has found, both on the evidence and on the Commissioner's report, that the appellants, were not in exclusive possession of the disputed suit land and that they are estopped from claiming any exclusive title to the suit property by their own conduct. With these observations, the trial Court held against the appellants.
7. On appeal, the Sub-Court, Erode, took up for determination the question as to whether the appellants have title to the suit property and were in possession on the date of suit, whether the respondents have been using the suit property as 'oor nathcm' and whether the appellants were entitled to the injunctions prayed for. The lower appellate Court has discussed both the documentary and oral evidence and observed thus:.Whatever that be, it is abundantly clear that the suit site has been used as oor mcndhai by the villagers. P.W. 1 who appears as a witness for the appellant and who is the karnam admitted in his evidence that the suit village exists for the last 363 years in accordance with the entries in the revenue records and that the suit portion adjoins the village, that the footpath runs across the suit portion and it joins the village, that the footpath exists from the date of his memory and that the fence A, B noted in the Commissioner's plan is there from the date of his memory. The karnam admits that for the village Kalingarayanpalayam Palayur, there is one mandhai which they called as natham. But hedoes not know whether the mandhai is situate in Kalingarayanpalayam Palayur. The existence of the village for more than 363 years and the existence of the footpath which runs across the suit site, which according to P.W. 1, a witness examined by the plaintiffs, is there from time immemorial are clear indications that the suit site was used by the villagers. The President of the Panchayat Board D.W. 1 has also deposed that the suit site was used as oor mandhai. D.W. 4 is 75 years of age and has mortgaged his property under Exhibit B-19. There is reference to mandhai in Exhibit B-19. The appellants have also adduced evidence to show that the suit site was not used as oor mandhai. But in my opinion, their evidence is not entitled to much weight in view of the documentary evidence and oral evidence adduced by the respondents and the report of the Commissioners.
The lower appellate Court thus observing and pointing out that the respondents (villagers) can set up both prescriptive right and customary right, held that they will be entitled to use the suit site on the basis of customary right, that the appellants have title to the suit property, that they are not in possession of it on the date of suit, that the respondents have been using the property as 'oor natham', that they have customary right to use the suit site and that the appellants will not be entitled to the injunctions prayed for.
8. Aggrieved by the judgments and decrees of the Courts below, the appellants have preferred these second appeals.
9. Mr. Vedantachari, learned Counsel for the appellants, argued that the Courts below have completely misunderstood the scope of the suits and have gone wrong in holding that the respondents have a customary right to use the suit site; according to Counsel, the pleadings do not make out any such customary right. He further argued that the rights claimed by the respondents cannot, in view of the decision of various Courts, form the basis of any customary right. Learned Counsel's view of the matter is that ingredients necessary for proving a 'custom' have not been satisfied in this case.
10. I have already noticed the basis on which the villagers (respondents) put forth their claim to use the 75 cents in inam S.F. No. 7-B which is called 'oor natham' or 'oor mandhai'. The villagers' claim is on the basis of prescription and custom for over a period of five hundred years. The user also is stated to be for various purposes such as pathway, cart-track, dumping the rubbish, burying the dead children etc. To substantiate their case, the villagers, have let in ample oral and documentary evidence which has found favour with the Courts below.
11. In Krishnamurthi v. Bapanayyo 1956 An.W.R. 713, the land in question was a poramboke land, and the Court held that simply because the land has been described as 'mandabayalu' in the remarks column of the revenue register, it does not imply a grant of an easement right by the Government to the villagers or a dedication of the property as cattle-stand or an engagement on the part of the Government not to assign or assess the land in futures Nevertheless, the said decision also state, the principle that if the law is to uphold the custom as a right, it should be immemorial in origin, certain and reasonable in nature and continuous in use. As far as the present case is concerned, there is ample evidence to show that from time immemorial, the disputed land is being used for various purposes in spite of the fact that the appellants, have claimed exclusive title in their own favour. It is not as if the land in dispute is a poramboke land as in the case in the above Andhra decision. The Andhra decision above cited has no bearing on the facts and circumstances arising from the evidence in this case. The decision in Krishnamurthi's case 1956 AnW.R. 713, in my opinion, completely rests on, and relates to, only customary right. In the case on hand, the villagers have based their right both on 'customary right' and 'prescriptive right', and that too in respect of land which is alleged to be the exclusive land of the appellants.
12. The decision reported in the Taluk Board, Dindigul v. Venkatramier I.L.R. (1923) Mad. 814, also relates to poramboke land, and, a Bench of this Court has held:
In the absence of evidence of open and continuous enjoyment as of right, of village sites, by the villagers, establishing in their favour any definite customary right or right by prescription, the Government can assign village sites to any one who applies for them for building purposes.
In Palani Ammal V. L. Sethurama Aiyangar : (1949)1MLJ290 , it is observed, dealing with the definition of 'grama natham':
Grama natham is not communal property in the sense in which village threshing floor or burning grounds or other property is communal, that is property reserved for the use of the community.
On that principle, a decree was granted in favour of the plaintiff who filed the suit to oust the defendant as trespasser. I do not think the facts in those two decisions will be applicable to the present case.
13. In Framji Cursetji v. Goculdas Madhowji (1892) I.L.R. Bom.338, a Bench of the Bombay High Court has held that there is no adverse possession in favour of the neighbours of the owner of a land even though the neighbours made use of the land for over a period of twelve years in various ways without any objection, by putting sheds for cows, goats, fowls and a hut for a watchman - all, however, structures of a flimsy and purely temporary character.
14. Sree Batchu Verikataratnam v. Secretary of State for India in Council (1930) 2 M.L.J. 452 : A.I.R. 1938 Mad. 565, dealt with a case where an irrigation tank which was found not to be communal property could be taken to pass to the grantee under a Zamindari grant unless there was clear evidence of its reservation by the Government; and it was held that the mere fact that the tank was referred to as poramboke in some of the village accounts will not necessarily lead to the inference that it belonged to the Government.
15. Ayissa v. Kunltaikalanthan : AIR1948Mad420 , cited by learned Counsel for the appellants, dealt with the question of proof as to who should prove adverse possession, and of the relevancy of Article 142 of the Limitation Act. The other decision cited, and reported in Saladurjamam Chowdhuri v. Oazaddin : AIR1937Cal46 , dealt with the question of proof of custom. Both these decisions, in my opinion, need not be noticed, since both the Courts, on evidence recorded, have come to the conclusion that both by prescription and custom the villagers have been enjoying the 75 cents in S.F. No. 7-B.
16. Ramanathan Chettiar v. Lakshmanan Chettiar : AIR1931Mad644 , dealt with a case of presumption as to possession and applicability of Article 142, Limitation Act. It has been held in that decision.
Where the plaintiff seeks on the strength of title and dispossession to oust defendants in possession he must prove possession within twelve years of suit. But the possession to be proved is such possession as the property is capable of or such as has been the normal method of user. When each party who claims possession to a piece of uncultivable open land is unable to prove any act of effective possession and, therefore, the normal method of possession is not referable to any such act, possession must be presumed to be with the party holding title. The presumption is not affected by the fact that the plaintiff who proved his title had also alleged, but failed to prove, definite acts of possession.
17. From the proved facts of the present case, I do not think there is any relevancy in noticing the above decision which arose on different facts and circumstances.
18. In Braja Sundar Deb v. Moni Behara : 2SCR431 , the Supreme Court has observed:
Where all that appeared from the evidence was that a number of fishermen from time to time have been exercising the right of fishing with the leave and licence of some of the owners, this is not sufficient for the acquisition of the right either by adverse possession or by prescription.
In my opinion, even this decision cannot have any bearing on the facts and circumstances, of the present case.
19. Nevertheless, Mr. Vedantachari, learned Counsel for the appellants stressed on the point that there is no specific, instance to prove custom or prescriptive right of the villagers, except some vague allegations regarding user of the land for various purposes mentioned in the pleadings and in the evidence and that there is no precision or certainty either in the evidence or in the pleadings to establish custom or prescription in favour of the villagers. According to learned Counsel, the mere fact that some dead children are buried in the 75 cents of the disputed land, cannot make it a 'oor mandhai' wherein the villagers have a right. Exhibits B-1 and B-2 and also the evidence of P.Ws. 1, 5 and others clearly establish the case that the disputed land is a 'oor mandhai' wherein the villagers have the right, they have pleaded. It is not as if the appellants are excluded from using this portion. But it is a case where the villagers including the appellants have the right to do the acts alleged by the respondents. There are ample materials on record to warrant the conclusion that the respondents and the villagers have acquired both prescriptive right and customary right in regard to the user of the disputed portion by the acts alleged by them. The various decisions cited by Mr. Vedantachari, and noticed above, no doubt, deal with specified cases where custom or prescription cannot be inferred. But those cases, by themselves, cannot be taken as laying down certain specific principles to conclude customary right or prescriptive right in given circumstances. Each case has to be decided upon the facts and circumstances arising from the given case. On going through the evidence on record, I do not think there is any ground, both legal and factual, made out by the appellants, to interfere with the conclusions and findings of the Courts below. The mere fact that the lower appellate Court has rested its conclusion on the customary right, in my opinion, cannot preclude the respondents from agitating their right on prescription as wall. The pleadings and the evidence on record are clear to establish the case of both customary right and prescriptive right of the villagers concerned. In view of the facts proved in this case, I am of 'the view that the respondents have proved both customary and prescriptive rights to use the 75 cents in S.F. No. 7-B in the suit village, which is popularly described as 'oor mandhai' belonging to the villagers in common, including the appellants herein.
20. In these circumstances, the second appeals are dismissed but without costs. No leave.