Om Parkash, J.C.
1. The facts, involved in this revision-petition, against a decree of the learned District Judge, Mahasu, whereby an appeal against a decree of the learned Senior Subordinate Judge. Mahasu, was dismissed, are short and simple. The petitioners, petitioners Nos. 2 to 4 being the sons of petitioner No. 1. were residents of village Dalan, Chak Dalan. The respondent was the resident of village Gopalpur, Chak Shawat. The parties owned lands in their respective villages. Orchards had been planted in those lands. The lands, though situated in different chaks, were adjacent to each other. The respondent had filed a suit, against the petitioners, for the issue of a perpetual injunction, alleging that though there never existed any path in the land of the respondent, the petitioners had. in 1958. started passing over the land comprised in Khasra Nos. 484 and 427 and carrying the produce of their orchard, packed in cases, and bringing back empty cases: that on a protest made by the respondent, the petitioners had stopped using the land but they had again started carrying the produce of their orchard through the land, of the respondent, in July 1959; that the respondent had served a notice on the petitioners to refrain from passing over the land but they had persisted in their illegal acts. The respondent prayed that the petitioners be restrained, by the issue of a perpetual injunction, from passing over, and using, the land for carrying the produce of their orchard or for any other purpose whatsoever.
2. The suit was contested by the petitioners Their plea, which is relevant for the decision of the revision-petition, was that a path, leading to village Shawat from village Dalan, after passing through the lands of the petitioners and other persons, passed through the land. Khasra Nos. 434 and 427 of the respondent and that the petitioners and other residents of village Dalan had been using the path from times immemorial openly, peaceably and as of right for more than 20 years, for bringing fuel wood, from the forest.
3. The learned Senior Subordinate Judge held that a footpath existed in Khasra Nos. 434 and 427 but that, that footpath was the private path of the respondent and not a public path. He, further, held that the petitioners and other residents of village Dalan had been passing over the path for the last more than 20 years and had been carrying fuel wood to the village from the forest, occasionally, but that the path had never been used for transporting the produce of orchard of the petitioners or for any other purpose. In view of his findings, the learned Senior Subordinate Judge granted a decree to the respondent for perpetual injunction, restraining the petitioners from carrying their fruit boxes over the path.
4. An appeal by the petitioners, against the decree of the learned Senior Subordinate Judge, was dismissed by the learned District Judge. The petitioners came up in revision to this Court
5. The learned District Judge, while disposing of the appeal of the petitioners, had not recorded any categorical finding as to whether a public path existed through the land, in dispute, or as to whether the petitioners had acquired a customary right to use the land in dispute for carrying the produce of their orchard or for transporting empty packing cases. The case was, therefore, remitted to the learned District Judge to record a definite finding on the following questions :
'Whether there exists a public pathway through the disputed land of the respondent and whether the petitioners have a customary or other right (not being a licence) to use the aforesaid land for carrying empty cases to their orchard and for transporting from it .the produce in packing cases.'
6. The learned District Judge gave an opportunity to the parties to adduce fresh evidence, if they so desired on the questions remitted. He also inspected the spot. The findings of the learned District Judge, on the questions remitted, were, that, the path passing through the land in dispute was a public path and that the petitioners had a customary right to use the path for carrying empty cases to their orchard and for transporting the produce of the orchard packed in cases Objections were filed against the findings of the learned District Judge, on behalf of the respondent.
7. The case of the respondent, in the trial Court, was that there never existed any path whatsoever, in his land. But in the Court of appeal, it was conceded, on his behalf, that a foot path existed in Khasra Nos. 434 and 427 and that the residents of village Dalan could use that foot path as a passage and for fetching fuel wood from the forest The aforesaid position was conceded in this Court, as well. The contention, on behalf of the respondent. was that the foot-path was only a village path and not a public path and that the petitioners had no right, customary or otherwise, to carry the produce of their orchard over the path The contention, on behalf of the petitioners, on the other hand, was that the foot path was a public path and they had the right to trans port the produce of their orchard over the path. The question which requires decision is whether the foot-path in Khasra Nos. 434 and 427 was a public path. Public rights of way are either created by a statute or arise out of dedication by the owner of the soil The dedication may be express or implied. It may be unlimited or limited to certain specified purposes only.
In the present case, there was no plea that the foot-path, in dispute, was made a public-path by any statutory provision. Further, there is nothing, on the record, to show that the respondent or any of his predecessors had expressly, dedicated the foot path for the use of the general public. It was pleaded, on behalf of the petitioners, that the general public had been using the foot-path for a long time and that this long user raised the inference of implied dedication to the general public. The plea that the footpath had been used by the general public is not supported by any evidence The petitioners did not produce any documentary evidence that the footpath was being used by the general public. All the witnesses of the petitioners admitted that the foot path was being used by residents of villages Dalan and Gopalpur only for a passage and for bringing fuel wood from the forest None of the witnesses had stated that the general public was using the footpath.
The mere fact that the footpath was being used by the residents of villages Dalan and Gopalpur. as a passage, could not lead to the inference that there was, implied dedication to the general public or that the footpath could be used for transporting the produce of orchards, packed in cases. Incidentally, it may be pointed out, that admittedly, the residents of village Dalan transported the produce of their orchards to Thanedhar, the motor-head, through another pathway, different from the footpath in dispute, passing through villages Dalan. Shathla. Dharala and Shawat.
8. Agreeing with the learned Senior Subordinate Judge, but disagreeging with the learned District Judge, I hold that the petitioners had failed to prove that the footpath in Khasra Nos. 434 and 427 was a public path and they had the right to transport the produce of their orchard packed in cases, over that path.
9. The authority, Usman v. Rahmat, AIR 1936 Lah 797, cited on behalf of the petitioners, is clearly distinguishable. In that case, it was found, on the evidence, on record, that it had been proved that the path, in that case, was a public path. In the present case, the evidence fell far short of proving that the foot path in dispute was a public path.
10. The next question, to be considered., is whether the petitioners bad a customary right to transport the produce of their orchard over the foot-path, in dispute. Before examining that question, it will be useful to notice certain principles, governing the establishment of a customary right of way, over the land of another. It was held in Kuar Sen v. Amman (1895) ILR 17 All 87, that a party who sets up a custom, which excludes or limits the operation of the general rule of law that a proprietor whose rights are not controlled or limited expressly or impliedly by statute law, by grant, or by contract, has an exclusive right to the use or enjoyment of his land for all purposes not injurious to the rights of his neighbours, should be put to strict proof of the custom, alleged. The above principle was approved, by their Lordships of the Privy Council, in Baba Narayan Lakras v. Saboosa, AIR 1943 PC 111. it was observed, by their Lordships :
'The burden lies upon one who sets up a custom in derogation of the ordinary rights of another as the owner of immovable property to give clear and positive proof of the user relied upon to substantiate the custom. '
11. It is, also well settled that a custom should be ancient, reasonable and certain as to its extent and application, and that the customary right should have been enjoyed openly, peaceably and not by stealth or by force. So far as antiquity, regarding a custom, is concerned, though the English law rule that a custom must have been used so long that the memory of man runneth not to the contrary is not applicable to India, and there is no fixed period of enjoyment necessary to establish a custom, yet a custom, in order to receive legal recognition, should have existed for a sufficiently long period. The requirement of long usage is essential for the establishment of a custom, vide AIR 1943 PC 111, supra. It will depend upon the circumstances of each case what antiquity must be established before a custom can be accepted. In the aforesaid Privy Council case, a customary right which had been exercised for fifteen years did not receive legal recognition. In Tula v. Sadh, AIR 1962 Him Pra 28, a customary right which had been exercised for a period of over thirty years was accorded legal recognition.
12. The question, whether the petitioners had established the customary right of transporting the produce of their orchard over the foot-path in dispute, is to be decided in the light of the above principles. The petitioners did not adduce any documentary evidence in support of the customary right, set up. The oral evidence adduced was only to the effect that residents of village Dalan had been using the footpath as a passage and for carrying fuel wood from the forest for the last more than thirty years. There was not an iota of evidence that, prior to 1958. any resident of village Dalan had ever used the footpath for transporting the produce of his orchard, packed in cases. In 1958, the petitioners had attempted, for the first time, to carry the produce of the orchard, over the footpath The attempt was resented, by the respondent, and a protest was made. The petitioners had repealed their attempt in 1959
The respondent had again protested and had instituted the suit for the issue of a perpetual injunction against the petitioners on the 4th August. 1959 So, the only customary right, peaceably and openly exercised by the residents of village Dalan over the footpath for about thirty years, was the right of passage, including the right to carry fuel wood from the forest. Those residents, including the petitioners, had no customary right to transport the produce of their orchards, packed in cases, over the footpath.
13. The only conclusion, from the above discussion is. that the petitioners had failed to prove that they had any right, customary or otherwise, to transport the produce of their orchard, packed in cases, over the footpath in dispute, or to carry empty packing cases. The learned Senior Subordinate Judge did not err in issuing the perpetual injunction against them. The learned District Judge rightly dismissed the appeal. The revision-petition is dismissed with costs.