Thomas Richardson, J.
1. This is an appeal from the decree of the Subordinate Judge of Sylhet, dated the 19th June 1919 reversing the decree of the Munsif of Maulvi Bafcar, dated the 15th March 1918. The plaintiffs in the suit claimed on behalf of themselves and other inhabitants of the villages of Narainpasha, Paschim Atghur and Jatrapur a right of way leading, roughly, from these villages on the north to a tract of land on the south, known as Hail Hoar, which the learned Munsif describes as 'the public pasture ground.' The plaintiffs duly obtained the leave of the Court to bring the suit under Order I, Rule 8 of the Code of Civil Procedure. In view of the order we are about to make, by which the case will be remanded to the lower Appellate Court, I desire to intimate at once that nothing which I may say in the course of this judgment is intended to express any opinion at all on the merits one way or the other.
2. The controversy relates to the southern part of the way which the plaintiffs describe and claim. The northern part of the way is called, according to their case, Gorakandi's Dara. The portion in the centre is called Dwiguner Dara, and then comes the portion on the south in respect of which the dispute has arisen known as Bhater Dara or Bhater Khal. That portion of the way lies between F and G on the Commissioner's map as corrected by the learned Munsif who made two visits to the locality at the request of the parties, one in December 1917 and one in January 1918. The learned Munsif made notes of his two local inspections and these notes are on the record. The learned Munsif, therefore, having seen the lie of the land, was in a position to understand and appreciate the bearing of the evidence adduced before, him by the parties.
3. In the result, he came to the conclusion that the right of way claimed had been established and he made a decree in the plaintiffs' favour.
4. In the lower Appellate Court the learned Subordinate Judge reversed this decree on the ground, to use his own words, that the evidence on the record was not in his opinion 'at all convincing to establish a user competent to establish a right of way by grant or otherwise.'
5. Now, there is no doubt that the question at issue is in essence a question of fact and if we were not of opinion that the learned Subordinate Judge approached the evidence in a way to which exception may properly be taken in point of law, we should, of course, have no jurisdiction to interfere in second appeal.
6. The point of law which arises turns on the nature of the right claimed and the nature of the evidence by which such a right is capable of being supported. The right claimed is a customery right of way. It is not an easement in the legal sense of that term. But even if it were an easement, it was not necessary for the plaintiffs to rely on the provision of Section 26 of the limitation Act, if the existence of the right could be otherwise established. No fault, therefore, can be found with the observation of the learned Subordinate Judge that 'plaintiffs did not claim the right of way as a prescriptive right acquired under Section 26 of the Limitation Act.' So far he correctly understood the position.
7. As to customary rights of way, in the judgment delivered by Wilson, J., for the Full Bench in Chunilal v. Ram Kishen Sahu 15 C. 460 (F.B.) : 12 Ind. Jur. 425 : 7 Ind. Dec. (N.S.) 892 such rights of way and other similar customary rights are distinguished, on the one hand, from the corresponding private rights (vested in particular individuals or in the owners of particular tenements) which 'commonly have their origin in grant or prescription' and, on the other hand, from public rights in the full sense, the source of which 'is ordinarily dedication.' Those rights which, having their origin in custom, belong to certain classes of persons or certain portions of the public such as the inhabitants of a village are customary rights. 'It is specially important,' says the learned Judge, 'that this class of rights should be clearly understood and borne in mind in a country like India, where interests of the most essential importance depend...upon custom.' Further on the learned Judge recognizes that where a right of this kind is disturbed a remedy may be sought by means of a representative suit such as the present, and there is no dispute now that such a suit as the present is maintainable.
8. The suit, then, is properly framed. The right set up is attributed to the force of a local custom, and the next question is, what is the nature of the evidence by which such a right may be established? It is at this point that I find a difficulty in the judgment of the learned Subordinate Judge. At the commencement of his judgment he says this:
The plaintiffs claimed the right of way 'over the disputed land as part of a village road and used for a period of more than 100 years or, in other words, from time immemorial. The defendants having denied the plaintiff's right of way, it was incumbent upon the latter to prove that the way was created by grant or otherwise. User for a long time of which no history is traceable would raise the presumption of such a grant.
9. Then comes the sentence which I have already quoted, that 'the evidence is not competent to establish a right of way by grant or otherwise.'
10. Now, a right based on custom is established by proof of the custom and it is not necessary that there should be evidence from which a lost grant may be presumed.
11. Moreover, it is not necessary, in my opinion, that a custom should be traced back for the whole time necessary to make it immemorial whatever that time may be, which I understand is what the learned Subordinate Judge means when he insists on evidence of user for a long time of which no history is traceable.'
12. The matter is adverted to in a passage in the judgment of Sir John Edge, C.J., and Banerjee, J., in Kuar Sen v. Mamman 17 A. 87 : A.W.N. (1895) 10 : 8 Ind. Dec. (N.S.) 381 which has received the concurrence of the Madras High Court in Palaniandi Tevan v. Puthirangonda Nadan 2 M. 389 : 7 Ind. Dec. (N.S.) 277 and of the Bombay High Court in Mohidin v. Shivlingappa 23 B. 666 at p. 671 : 1 Bom. L.R. 170 : 12 Ind. Dec. (N.S.) 445. 'A local custom,' the learned Judges say, 'to have the effect of excluding or limiting the operation of the general rules of law must be reasonable and certain. A local custom, as a general rule, is proved by good evidence of a usage which has obtained the force of law within the particular district, city, mohalla or village, or at the particular place, in respect of the persons and things which it concerns, Where it is sought to establish a local custom by which the residents or any section of them of a particular district, city, village or place are entitled to commit on land not belonging to or occupied by them, acts which, if there was no such custom, would be acts of trespass, the custom must be proved by reliable evidence of such repeated acts openly done, which have been assented and submitted to, as leads to the conclusion that the usage has, by agreement or otherwise, become the local law of the place in respect of the person or things which it concerns. In order to establish a customary right to do acts which would otherwise be acts of trespass on the property of another the enjoyment must have been as, of right, and neither by violence nor by stealth, nor by leave asked from time to time. We cannot in these Provinces apply the, principle of the English Common Law that a custom is not proved if it is shown not to have been immemorial. To apply such a principle as we have been urged by the Counsel for the appellant to do, would be to destroy many customary rights of modern growth in villages and other places. The Statute Law of India does not prescribe any period of enjoyment during which, in order to establish a local custom, it must be proved that a right claimed to have been enjoyed as by local custom was enjoyed. And, in our opinion, it would be inexpedient and fraught with the risk of disturbing, perfectly reasonable and; advantageous local usage's regarded and observed by all concerned as customs to attempt to prescribe any such period.'
13. It is not necessary for us in the present case either to deny that local customs in India may have a relatively modern commencement and growth or to go with the learned Judges to, the length of saying that the principle does not apply in India that a custom is not proved if it is shown hot to have been immemorial. In the result, the learned Judges held that the custom with which they had to deal had not been established, and perhaps what was actually decided is to be found, stated negatively, in the passage which follows the passage which I have read, where the learned Judges say:
In our opinion a Court should not decide that a local custom, such as that set up in this case, exists, unless the Court is satisfied of its reasonableness and its certainty as to extent and application, and is further satisfied by the evidence that the enjoyment of the right was not by leave granted or by stealth or by force, and that it had been openly enjoyed for such a length of time as suggests that originally, by agreement or otherwise, the usage had become a customary law of the place in respect of the persons and things which it concerned.
14. These last words are the words on which I should desire today stress for the purpose of the present case. The evidence must be. sufficient to show that the right 'has been openly enjoyed for such a length of time as suggests that, originally, by agreement or otherwise, the usage had become a, customary law of the locality.', Where, as it seems to me, the learned Subordinate Judge fell into error is, firstly, in supposing that the existence of the custom depended on the presumption of a lost grant, and, secondly, in supposing that there must be direct and positive evidence of the immemorial, enjoyment of the right claimed.
15. The doctrine of the lost grant is applicable to private rights claimed by prescription. It is inapplicable to a right claimed on the basis of immemorial custom. It is inaccurate and slipshod to speak of the local understanding or, agreement or practice which comes to be a local law or custom as a grant. The question of legal origin is only of importance where it is suggested that, the right claimed might have originated within the time of memory whatever that time may be. In the case of a custom its legality depends on such considerations as its reasonableness and its certainty and no one suggests that the right claimed in the present case is unreasonable or uncertain.
16. As to the length of user or enjoyment which, must be proved before a local custom may justifiably be inferred, perhaps no definite rule can be laid down. But if the existence of the custom depends on oral evidence, and the user or enjoyment is taken back as far as living memory Can be expected to go, then, in the absence of rebutting evidence, it is not unreasonable to say, praesumitur retro or to infer an immemorial enjoyment of the right, or say, in. Bengal, an enjoyment from the time of the Permanent Settlement. In other words, on such evidence being adduced in support, of the custom the burden of proof is shifted and it is for those who deny the existence of the custom to adduce rebutting evidence. This they may do, for instance by showing that the user which is said to be a customary user as of right originated in some way which displaces the theory of a customary right.
17. I think the cases bear me out when I say that if the evidence is sufficient to show that a particular right of this kind has been openly enjoyed as of right for 30 or 40 years, or perhaps, for 20 years, I am not laying down a rule applicable to all cases, but if the evidence shows that the right has been enjoyed for a considerable period, say 30 or 40 years then the burden of negativing the right claimed is on those who deny its existence. If that be correct, the Standard which the learned Subordinate Judge applied to the evidence for the plaintiffs in the present case was too high. He imposed, on the plaintiffs a heavier burden than that which they ought to bear. Referring to plaintiffs' witness No. 3 the learned Judge says that, 'he spoke of the user for 30 or 40 years only.' The learned. Judge goes through the whole of the evidence for the plaintiffs very much in that way. In no case does he any that be disbelieves any particular witness, and the impression which the judgment leaves on any mind is that the learned Judge, without disbelieving the evidence for the plaintiffs, considered that, evidence insufficient with reference to the standard which he had set up. It is in that respect that, as it appears to me, the judgment is unsatisfactory and cannot stand.
18. There is another minor point to which I may invite attention. Towards the end of his judgment, after he had dealt with the evidence, the learned Subordinate Judge says: 'the condition of the locality from C to E as marked by the learned Munsif makes the existence of a pathway on that spot improbable. The beel between D and E shows that no pathway for walking can exist. The portion B to C is a channel and it too demolishes the theory started by the plaintiffs.' In my oipinion the learned Subordinate Judge has not dealt with the plaintiffs' claim quite in the shape and form in which it was advanced. The first prayer of the plaint shows that the plaintiffs asserted a right of way to be enjoyed 'by driving their cattle over the same and by passing along the same with their cattle in Hemanta season and by plying their boats along the same in rainy season.' So, too, in paragraph. 2 of the plaint it is said: 'The residents of the northern quarters of Mouza Narainpasha, Paschim Atghur and Jatrapur are greatly and indispensably in need of driving their cattle to Hail Hoar for grazing and of plying their boats in rainy season for carrying grass, after cutting the same from Hail Hoar.' There seems to be no question of two separate ways, one a pathway and the other a water way. The case made is that the same way is a water way during part of the year and a pathway during the remainder. I do not understand, therefore, how the Subordinate Judge draws an inference adverse to the existence of the right, claimed from, the fact that when the learned Munsif visited the locality in December 1917, part of the way claimed was under water and. not suitable, for walking upon. I merely mention that as a matter to which when the case gees back attention may be directed.
19. In my opinion, for the reasons I have set out, the Judgment and decree of the Subordinate Judge should be set aside and the case remanded to the lower Appellate Court in order that the appeal thereto may be reheard by such other Subordinate Judge as the District Judge may appoint.
20. Costs will abide the result.
21. I agree.