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

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