1. The plaintiff instituted this suit against the defendants Nos. 1 to 10 as principal defendants and defendants Nos. 11 and 12 as pro forma defendants for declaration of right by purchase to a tank with an outlet comprising an area of 5 cattas and of right by inheritance to 1 catta of land and for confirmation of possession in respect of the said 5 cattas and for recovery of khas possession in respect of the said 1 catta and for an injunction.
2. The plaintiff's case was that he has acquired 3/4th share in the said tank by purchase, the remaining 3/4th share belonging to the defendant No. 12, and had also acquired title to the said 1 catta of land by inheritance and thereafter by partition with his brother the defendant No. 11. As for the tank, the allegation was that there was an outlet at its north-east corner from the time of the plaintiff's vendor, and the plaintiff closed the same for the purpose of rearing fish; that the defendants Nos. 1 to 9, at the instigation of the defendant No. 10, for themselves and also on behalf of the public, instituted a criminal case against the plaintiff, for getting the said outlet opened on the allegation that there was a public boat passage through the said outlet. As to the said 1 catta of land, the allegation was that the defendant, No. 10 had encroached upon it and had dispossessed the plaintiff therefrom.
3. The prayers in the plaint were substantially the following : (a) for a declaration of title of the plaintiff by purchase to the 5 cattas of tank together with the outlet and his right by inheritance to the 1 catta of land, (b) for a declaration that the 'defendants or the public of the neighbourhood had no right to a boat passage either by right of easement or any other right, and that the outlet may remain closed intact and be not opened, (c) for confirmation of possession in the 5 cattas of tank together with the outlet, (d) for a temporary injunction and also a permanent injunction that the said outlet may never be opened and (e) for a decree for khas possession in respect of the 1 catta of land by ejecting the defendant No. 10 and by removal of the obstruction caused by him.
4. It appears from the plaint that the defendant No. 11 was made a pro forma defendant, because on partition with him plaintiff acquired title to the 1 catta of land; it is stated in the plaint that the defendant No. 12 was the owner of the remaining 1/4th share of the tank and if he was willing to be transferred to the category of plaintiffs he might be made one. One other fact need be stated: Paragraph 12 of the plaint runs thus : 'This suit is instituted against the defendants on behalf of the local public, and the plaintiff therefore prays that notices be served on the public in accordance with the provisions of Order 1, Rule 8(1), Code of Civil Procedure.'
5. A notice of the suit inviting the local public to come in as defendants if they liked, was advertised but none came in; of the defendants named in the plaint, Nos. 1, 2, 3, 4, 6, 8, and 9 filed written statements in which they denied the allegations made against them in the plaint as to collusion with defendant No. 10, and also denied that they had any right of easement or other right in the said tank and stated that they had no claim thereto. Defendants Nos. 7, 11 and 12 did not appear. The defendant No. 10 contested the suit, alleging inter alia that as to the tank only 11/2 cattas in the southern-portion belonged to the plaintiff's vendor and the remaining portion on the north belonged to his own vendors, and the public had a right of passage for boats over the said southern portion from time immemorial; as for the 1 catta of land he set up a title antagonistic to the plaintiff's. It is also necessary to refer to paragraph 7 of his written statement which runs as follows : 'If in the just decision of the Court the plaintiff succeeds in establishing his title by purchase to the aforesaid southern portion of the plot in suit marked (Ka), (Kha), (Ga) and (Gha) then the said title to the said portion is subject to aforesaid public right of easement belonging to this defendant and of the public residing in Multi and other villages over the dobakhai (ditch) situated in that portion; and if it be held that the plaintiff is entitled to any declaration, then he may get such a declaration subject to the said right'. The aforesaid public right of easement' in the said paragraph refers to the right of the public to take their boats over the said ditch and mooring the same there and also for the purpose of landing which they had been exercising from time immemorial.
6. It appears that an objection as to mis-joinder of causes of action was raised and on it the learned Munsiff on the 28th July 1921 recorded an order giving effect to it. The material portion of the order runs as follows:
I am of opinion that the two causes of action cannot be joined in the same suit. One of the causes of action is against defendant 10 alone in respect of plot D in suit, and the other cause of action is against all the defendants 1 to 10 and the remainder of the local public, upon whom I am told notice has been served as required by law. The causes of action cannot therefore be said to have arisen against the same defendants or the same defendants jointly. It is pointed out on plaintiff's behalf that defendants 1 to 6 and 8 and 9 have disclaimed any public right. But defendant 7 remains and does not appear. Defendant No. 10 claims that public right as well. As far as the public right is concerned, even if all the other defendants had disclaimed all rights defendant No. 10 would remain as one of the local public who have nothing to do with the other causes of action. So then I do not think the cause of action could be said to arise against the same defendant or same defendants jointly.
I therefore find the point against the plaintiff
It is hence ordered.
That the plaintiff do amend the plaint at once, in the way they (?) think best.
7. The plaintiff thereupon amended the plaint by withdrawing the claim as to the 1 catta of land. The suit was proceeded with against defendant No. 10 as the contesting defendant, The learned Munsiff declared the plaintiff's title to a 3/4th share in the portion of the tank marked blue in the map prepared by the commissioner, and left the question of his title to the portion north of that line open. He also declared that the local public had no right to pass any boat through that portion of the tank or of mooring any boat therein. He, however, held that the people of the neighborhood had a customary right of boat passage by the north of the tank beyond the portion indicated above during the rains, and so he made a declaration to that effect and he also directed that the plaintiff must remove obstruction on the north-east corner of the tank.
8. The decision of the Munsiff was upheld on appeal and the plaintiff' has thereupon appealed to this Court.
9. Two objections in the nature of preliminary objections have been taken by the respondent as to the competency of the appeal. It is urged that the appeal is imperfectly constituted as the defendant No. 12 and also the heirs of the defendant No. 11 have not been made parties to it. It is urged also that the suit is not properly constituted as the necessary permission under Order 1, Rule 8, Clause (1) does not appear on the record, authorising the defendant No. 10 to proceed with it on behalf of the public.
10. With regard to the first of the aforesaid objections, I am of opinion that there is no substance in it. The defendant No. 12 was made a pro forma defendant, because at the date of the suit he was entitled to a 1/4th share in the tank. It appears from the evidence adduced on behalf of the plaintiff and which has not been rebutted or controverted that that defendant has no longer any interest therein. In any event, the decree of the Court below, in so far as it is in plaintiff's favour, declares his title to a 3/4th share, about which there was no contest between him and the defendant No. 12. The respondent's contention that the customary right of boat passage that has been declared indirectly affects the 3/4th share of that defendant, is of no avail. There was no relief claimed, as against that defendant, nor was it a case in which any question arose as between the co-defendants, which it was necessary to determine before adjudicating on the plaintiff's claim. That defendant therefore is not bound by the decision in the present suit; and I do not see why his absence would stand against the maintainability of the appeal. On this point my attention has been drawn to the cases of Bejoy Gopal Bose v. Umesh Chandra Bose (1901) 6 C.W.N. 106, Kali Dayal Bhattacharya v. Nagendra Nath Pakrashi (1919) 24 C.W.N. 44, Raj Chunder Sen v. Ganga Das Seal (1904) 31 Cal. 487. I do not think it necessary to discuss these authorities, as, in my opinion, the principles laid down therein do not affect the present case. This is not a case in which there can be the remotest chance of any conflicting decrees coming into existence, if the appeal is proceeded with in the absence of defendant No. 12. The other branch of this objection based on the ground of the absence of the defendant No. 11 loses all its force, when it is seen that the claim to the plot of 1 catta of land which was originally included in the suit was withdrawn by the plaintiff as mentioned above:
As for the second one of the aforesaid objections, the order of the Munsif, dated 28th July, 1921, quoted above taken along with the proceedings that took place after the institution of the suit has left no doubt in my mind that the defendant No. 10 was fully competent to proceed with the suit on behalf of the local public. The leave of the Court necessary under Order l, Rule 8(1), Code of Civil Procedure, need not be express; it is enough if it could be gathered from the proceedings. Dhunput v. Paresh (1893) 21 Cal. 180, Kalu v. Jan Meah (1901) 29 Cal. 100. The dictum of Stuart, C.J., in Hira Lal v Bhairon (1883) 5 All. 602 that the leave should be express has not been adopted in this Court. These objections therefore in my opinion fail.
11. Coming now to the merits of the appeal, it is necessary to refer to only four of the contentions put forward on behalf of the appellant, and they are these : (a) The customary right set up in the written statement and sought to be proved in the case is too unreasonable and vague to be recognised by law : (b) The declaration of the customary right made in favour of the defendants is, in respect of such a customary right as was never pleaded and is of a character which is wholly different from it and inconsistent thereto : (c) The findings of the Courts below do not suffice in law to establish the right which has been declared and (d) the decree directing the plaintiff to remove the obstruction is unsustainable.
12. On these questions raised by the appellant in this appeal the judgment of the Court of appeal below throws very little light. It is a judgment of affirmance, and does not even so much as refer to all the necessary findings Which may support the decree that has been passed in this case.
13. Now as to contention (d) set forth above I may say at once that the learned Munsif was wrong in embodying this direction in his decree against the plaintiff in the present suit. If, in his opinion, the plaintiff was not entitled to the injunctions, he asked for, the learned Munsif should have refused him that relief; but could not direct him to remove the obstructions or order their removal.
14. The other three contentions (a), (b) and (c) may be dealt with together.
15. It appears to me that the right claimed in the written statement of the defendant No. 10 (and that is the only place where we find the rights of the public attempted to be defined) was a right on behalf of the public in general of a passage for boats over the dobakhal lying in the southern portion of the tank measuring one and half cattas, that it had become a 'public channel,' as the public in general had used it as a boat passage from time immemorial and had acquired a 'public right of easement' and the public including the defendant No. 10 and 'people residing in Multi and other villages' had 'a public right of easement' therein. The essential characteristics of the right so claimed are wholly distinct and different from the right that has been declared, namely the right acquired by the people of the neighborhood to use the northern portion of the tank for passage of their boats during the rainy season. The passage used is different, the body of men in whose favour the right is claimed is different, the occasion for the use is different and the basis of the right is different. In my opinion the appellant is right in his contention that the right claimed in the written statement, in so far as it is pretended to be based upon custom, was? vague and unreasonable, and it could not be claimed on behalf of a number of villages which again were not specified at all. What has been found in the case is a right of the local public, that is to say the public of the neighborhood, to use the northern portion of the tank as a boat passage and that is a right of a wholly different character, see the observations of Kekewich, J., in Edwards v. Jenkins (1896) 1 Ch. 308. The essential characteristics of custom are that it must be of immemorial existence, it must be reasonable, it must be certain and it must be continuous. Every custom must have been in existence preceding the memory of man, and if the proof was carried back as far as living memory would go, it should be presumed that the right claimed had existed from time of legal memory; Angus v. Dalton (1877) 3 Q.B.D. 85. Want of continuity or interruption or disturbance raises a strong presumption as to its non-existence. The reasonableness of custom is so very necessary that if it be against reason, it has no force in law. The commencement must be based on a reasonable cause for if an alleged custom is unreasonable in its origin no usage or continuance can make it good; but, by this, all that is meant is that it is sufficient if no good legal reason can be assigned against it (Blackstone's Commentaries, Vol. I, p. 77). In many cases customs have been held to be reasonable on the ground that they confer a benefit on a large class of the community and do not unduly or unjustly restrict the rights of the public or individuals; in other cases, customs have been held to be unreasonable on the ground that it would entail unnecessary expense or throw an unjust or disproportionate burden on some individuals lor the benefit of others. As to the element of certainty, not only should its nature be certain, but there should be certainty in respect of the locality where it exists and also in respect of the persons affected by it. The learned Munsif evidently had his attention directed to some of these essential characteristics and he found that just to the west of the Local Board road there are the residences of the plaintiff's, defendants and other people of various castes. During the rains these people have to use dongas for various purposes such as carrying female passengers as also male passengers, to and fro, bringing up coal and other things of family use purchased at Magrahat, the great emporium of this part of the district, bringing produce of distant cultivations and so also Beparis (petty traders) far and near used to come up in boats and dongas to the ghat for loading raw materials purchased in the locality. This had been going on from time immemorial, that is 'from a time whereof the memory of man runneth not to the contrary 'and as a matter of course, 'without any permission or opposition from anybody.' These observations indicate that the learned Munsif found the ancient character and continuity of the custom that was set up in the written statement. As to its reasonableness, says the learned Munsif, 'it is also not unreasonable.' As to its certainty, he observes 'there is no question that it is certain.' But then examining the facts found, it would appear that his finding was 'that the donga necha and the landing ghat have been used for the benefit of the local people only, if any distant people used to come, that was either to transact business with them or to exchange friendly visits.' This finding would not be sufficient to establish a valid custom. Firstly, there is the element of uncertainty as to the locality where it is alleged to exist. Some definite limit must be assigned to the area wherein the custom is said to prevail, and it must be defined by reference to the limits of some recognised division of land, the boundaries whereof may however vary from time to time, just as much as it may affect a particular body or class of persons whose number may be fluctuating at different times. In Broadpent v. Wilks  Willes 360, Wills, C.J., observed : 'And it must be certain for two plain reasons, 1st : Because if it be not certain, it cannot be proved to have been time out of mind; for how can anything be said to have been time out of mind when it is not certain what it is; Secondly : It must be certain because every custom presupposes a grant; and if a grant be not certain it is void.' In the present case the expression 'local people' used in the findings of the learned Munsif quoted above destroys the element of certainty that should be found in a valid custom. Nextly, the custom which he found was in my judgment a wholly different one from the one set up. The customary right of the general public of Multi and other villages to use the boat passage, is a far wider and necessarily a different right from that of the local public to do the same. It is no argument to say that the latter is less wider in scope, for it is no part of the larger custom but essentially distinct and different from it in nature. In Farquhar v. Newbury Rural Council  2 Ch. 586, Warrington, J., found that the user of a roadway was too wide to support an alleged customary church way confined to the inhabitants of a parish. This decision was affirmed; Farquhar v. Newbury Rural Council  1 Ch. 12. The inference of the existence of a narrower custom from evidence of custom of a wider character, was disproved in the case of Hamemmerton v. Honey  24 W.R. (Eng.) 603. In the present case too the custom set up in the written statement was far too wide and one which would not be recognised by law; and from the evidence adduced in support of that custom a different customary right far less wide in its scope has been found.
16. The above observations would go to show that, if there was a suit before me for declaration of such a customary right as was claimed in the written statement in the present case or as was found by the learned Munsif, I would have had no hesitation in dismissing the suit. The position is wholly different in the present suit. So far as this matter is concerned, in the present suit the reliefs sought for were two viz. That it be declared that the defendants or the public of the neighbourhood had no right to a boat passage either by right of easement or any other right, and that the outlet may remain closed intact, and be not opened, and for injunctions temporary and permanent that the outlet may never be opened. When the defendant has succeeded in establishing some sort of right, that right cannot altogether be ignored and the plaintiff cannot get these declarations. At the same time I am not sure that the defendant has succeeded in establishing a definite customary right, to which the plaintiff's rights are subject. Furthermore to charge the plaintiff with liability in respect of a right that was not pleaded in the written statement was obviously unfair. It maybe that if a definite customary right were pleaded on behalf of villagers of this particular village, or a right of some other conceivable character set up which is not repugnant to law, the defendant would be able to prove it, and the error on his part is one more of form than of substance, having regard to the inartistic way in which pleadings are sometimes drawn up. The consequences of a decision in a suit of this character are far reaching, I therefore think that the present decree under appeal as well as that of the Court of first instance should be set aside, and leave be given to the defendants or such of them as desire to defend the suit on behalf of the general public to amend the written statement, and then proper issues being raised the suit be proceeded with and necessary findings being recorded the suit be disposed of.
17. For the guidance of the Courts below in disposal of this suit I would make the following observations : A right, of boat passage may exist over the water of another by virtue of a custom. Such rights existing by custom are to be distinguished from public rights of boat passage which arise from dedication or grant and from private rights of boat passage which are easements properly so-called. A customary right of boat passage is one which may be enjoyed by any member of a body or class of persons, or may exist only for the benefit of a limited section of the public and it cannot be used under a claim of right by any person who is not a member of that body or class in whose favour it exists. Such customary rights may exist in favour of the inhabitants of one particular village or more villages than one, sufficiently, well-defined. It is desirable that there should be findings definitely stating what sort of right, if any, is established on behalf of the defence.
18. In the event of the defendants not proceeding with the suit any further, the decree of the learned Munsif will stand subject to the modification that the directions in the said decree declaring a customary right of Donga or boat passage by the north of the tank beyond the portion marked blue in the Commissioner's map, and the directions for removal of an obstruction on the passage at the north-east corner of the tank shall be expunged, and in lieu thereof, a declaration shall be entered in favour of the plaintiff that the public or the people of the neighbourhood have no right of passage of boats in that portion as well, and the injunctions sought for by the plaintiffs shall also be granted.
19. I make no order as to the costs in this appeal.