This is a second appeal by the plaintiffs and arises out of a suit instituted by them for a declaration that they have a right to take earth from field No. 111 of Mauza Shegaon Buzruk belonging to the respondent for preparing earthen pots and for a permanent injunction restraining the respondent from obstructing them from taking earth from this field.

(2) It is common ground that this field was the banjar land of the lambardar and was purchased from him by the respondent on 13-12-1948. The appellants claim is that the kumbhars of the village have a customary right to remove the earth from the western side of this field and that there is actually in existence a pit on that side. The existence of this pit is admitted by the respondent, according to whom, its dimensions are 25 x 20 x4. The sole question to be determined in this case is whether the appellants have acquired a customary right to take earth from the aforesaid pit. Whether this custom exists or not is a mixed question of fact and law.

(3) What has been established in this case is that the Kumbhars of the aforesaid village used to take earth from the pit on the western side, mix it with the earth of the village tank and then prepare earthen pots out of their mixture and that they have been doing so for about 30 years. Could it be said that this is a good custom and if so whether it could be recognized by the Court on the ground that it has been in existence for a long time?

(4) It may be mentioned at the outset that Shri Mangalmurti, who appears for the respondent, relying upon the decisions in Bholanath Nundi v. Midnapore Zemindary Co. Ltd., 31 Ind App 75 (PC) (A) and Lakshmindhar Misra v. Rangalal AIR 1950 PC 56 (B) contended, in the first place, that a custom of this kind should have been in existence from time immemorial. In the first mentioned case, their Lordships mentioned the fact that the plaintiffs had claimed a right of pasturage over the waste lands on the ground that the right was enjoyed by them and their predecessors from time immemorial. Dealing with this point their Lordships observed in their judgment :

". . the right of pasturage claimed has been enjoyed by the plaintiffs and their predecessors from time immemorial - from the time of the Hindu Rajahs - long before the Watsons had anything to do with the property."

From this it would be clear that the expression time immemorial* was understood by their Lordships not in the sense in which it was understood, i.e., prior to the year 1189, but in a different sense. No doubt, in the second mentioned case, their Lordships have observed at page 59 :

"What the Courts have required of a custom, if the law is to uphold it as a right, is. that it should be immemorial in origin, certain and reasonable in nature and continuous in use. It is by these tests that the appellants claim in this case must be tried."

The Courts referred to by their Lordships were the Courts in England. In that case, however, their Lordships have not considered what was exactly intended to be understood by the expression "time immemorial. Indeed, all that was established in that case appears to be that the right claimed was exercised from generation to generation and nothing more. In the circumstances and in view of other decisions of their Lordships, I do not think it will be proper to infer that the expression immemorial origin is to be understood in India in the same sense as in England. In this connection I may refer to Musammat Subhani v. Nawab 68 Ind App 1 at p. 31

(C) in which their Lordships have observed :

"It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of the particular district."

Again, in Baba Narayan v. Saboosa, ILR 1943 Nag. 705 at p. 711 t

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