JUDGMENT :- These two Second Appeals arise out of two suits instituted against the residents of Mallepalli and Madigapalli for restraining them from passing through the fields of the plaintiffs by means of a permanent injunction. The defendants pleaded that for over 100 years they were passing through the fields of the plaintiffs and through the fields of some other ryots for going to Mecherla. The District Munsif of Guserala held that the defendants had established a customary easement and dismissed the suits. On appeal, the Subordinate Judge of Narasaraopet allowed the appeals on two grounds, namely that the defendants did not plead customary right in their written statements, and that they did not make out the customary right. The Second Appeals are filed on behalf of the villagers of Malepalli and Madigapalli.

2. The main contentions urged by the learned advocate for the appellants are that though the expression "customary right" is not specially mentioned in the written statements, the facts set out therein are sufficient to establish a customary right in the villagers of Malepalli and Madagapalli. It was also contended that the custom was not unreasonable as found by the lower Appellate Court and that the mere fact that the villagers were also using that pathway did not negative their customary right. I agree with the contentions of the learned advocate for the appellants that having regard to the Privy Councils decision reported in - Lakshrnidhar Misra v. Ranglal, AIR 1950 PC 56 (A), the omission to use the words "customary right" in the pleadings or state the exact nature of the legal right does not prevent the Court from upholding the customary rights if the facts warrant that conclusion.

At page 57, Lord Radcliffe in delivering the judgment of the Judicial Committee observed as follows :

"The appellants, as they were entitled to, confined their plaint to the allegation of fact that "The said plot has been reserved from time immemorial and the people of the locality are using it for the said purpose from generation to generation" without pleading any special legal conclusion from these facts."

Their Lordships held that the facts pleaded were sufficient to make out a customary right. As in the Privy Council case, the defendants have pleaded in their written statements that for a period of over 100 years they have been passing through the fields of the plaintiffs and through the fields of some other ryots for going to Mecherla. I therefore disagree with the view of the Subordinate Judge and hold that it is open to the defendants to make out a customary right.

3. The essential ingredients of customary right are set out in the Privy Council decision referred to supra. The custom should be immemorial in origin, certain and reasonable in nature and continuous in use. So, the short question that falls to be determined is whether the defendants have established that the custom is ancient, certain and not unreasonable. I have perused the entire oral evidence of the defendants witnesses and I agree with the Subordinate Judge that the defendants have not established that the custom is either ancient or reasonable in character. The right set up by the defendants is to pass through cultivable lands belonging to the plaintiffs. D.W. 2 admitted in cross-examination that the owners of the respective fields over which the pathway passed plough the entire land without leaving the pathway. There was no re-examination of this witness on this point.

D.W. 6 admitted "The lands are cultivated without having a pathway, but yet people pass along it". The lands are admitted of black-cotton soil on which dry crops are grown. I agree with the conclusion of the learned Subordinate Judge that a custom to pass over cultivable lands of this description is certainly unreasonable and cannot be recognised by the Courts. Though, as pointed out by Lord Radcliffe in - AIR 1950 PC 56 at p. 58 (A), the conclusion arrived at by the lower Appellate Court is not

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