Sir George Rankin.:-

This appeal is preferred by the plaintiffs in a suit brought on behalf of the Hindus of a place called Basim, situated in Berar, against a number of Muslim defendants as representing the whole Mahomedan community of Basim. An order under R.8 of O.1 of the Code was duly made and the defendants contested the suit in three Courts in India. Their Lordships much regret, however, that they have not had the advantage of any argument for the defendants as no one appeared to represent them at the hearing before the Board. The dispute is as to the right of the Muslims at the time of Muharram to immerse tazias in a tank called the Padmatirtha tank which lies to the North West of Basim. This tank is described as a large area of water and as having ten ghats. The relief claimed by the plaint, which was filed in the Court of the Subordinate Judge at Basim on 20th June 1929, was an injunction restraining the defendants from immersing tazias (a) from ghats 1 and 2; (b) from ghats 3, 7 and 10 and (c) from ghats 8 and 9. The plaint alleged that the tank was the property of the Hindus : it admitted that for about ten years-that is since about 1919-tazias had been immersed from ghats 1 and 2 but stated that this use was by permission of the Hindus. It complained that in 1925 damage had been done to certain trees sacred to the Hindus and that since 1925 all the ghats had been used, except ghats 8 and 9, in 1926. It alleged quite truly, that what was done in 1927 and 1928 was covered by orders made by the District Magistrate to avoid a breach of the peace. The written statement denied that the ownership of the tank was in the Hindus claimed that it belonged to an ancestor of defendant 1, and set up an alternative case that the Mussulmans had from time immemorial and as of right immersed tazias from all the ghats. The allegation of damage done to trees was met by a plea-both illadvised and groundless-that the Mussulmans have unobstructed right of immersing tazias in the tank. If branches of any tree come in the way, they are always cut, in order to allow a free passage, without any objection.

On 28th March 1933, the trial Judge, after hearing a large number of witnesses on both sides, restrained the defendants "from using any of the steps of the tank for immersion of tazias." He found that the tank was the property of the Hindus, observing that it had been held in many cases that a fluctuating body of persons, such as a village community or a particular community, is capable of owning property. On the question of user he held that before 1919 some tazias were immersed from ghats 1 and 2 as a matter of permission and not as of right, but that the first year in which all the ghats were used was 1925. Having negatived the existence of any easement, he considered whether the defendants had shown any customary right, such as is contemplated by S.18, Easements Act (5 of 1882). He found that such a right had not been made out, the user proved being inadequate in point of uniformity, continuity and certainty. He held further that the alleged custom was not reasonable.

The defendants' appeal to the Court of the District Judge was dismissed on 7th February 1935. The learned First Additional District Judge of Akola confirmed the trial Judge's finding that the tank belonged to the Hindus. He held that before 1925 there had been peaceful immersion but only from ghats 1 and 2: that immersion had taken place since 1925 from all the ghats but had been accompanied by dispute and not peaceful. He agreed with the trial Judge in rejecting the defendants' evidence that all the ghats had been used from before 1925. As regards ghats 1 and 2, he noted that the plaintiffs had in the course of the trial admitted that the use of these two ghats had begun about 1915. He referred to the evidence of D. W. 125-Mr. C.E. Middleton Stewart-who had been Assistant Superintendent of Police at Basim from the end of 1909 until 1912 and on whose evidence the trial Judge