1990 Supreme(Bom) 140

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Sharad Manohar, J.
Radha Krishna Kandolkar and others.... Appellants.
Versus
Tukaram Pundalik Homkhandi... Respondent.
Second Civil Appeal No. 18 of 1989, decided on 30-3-1990.
Advocates appeared :
S.D. Lotlikar, for the appellants.
G.U. Bhobe, for the respondents.

Headnote:INDIAN EASEMENTS ACT, 1882

       Section 2-Claim of customary right by plaintiff to draw water from pond of defendant-Held-Such a right cannot be claimed as personal right against a particular Individual-Such a right is recognized by community as a whole and is a right of community.

       Whether that act resulted in a customary right in favour of the plaintiff or not is an entirely different question. About the so-called customary right, neither the plaintiff nor any of witnesses has as much as murmured one word. Thus the custom is not pleaded; nor any evidence is led to prove that custom from which alone the customary right could emanate.

       Essentials of proof of customary right-The brings me to the question as to what is required to be proved by the plaintiff when he claims a customary right to draw water from the defendants pond. A customary right is recognized even by the Easement Act (See Section 2). But can be claimed not as a mere personal right of the plaintiff vis-a-vis the particular defendant. It is the right of the community or the right recognized by the community as a whole. Normally, a custom has got to be immemorial, in the sense that its oriain may not be traceable. In any event, it has got to be of very long duration, and of very remote and distant origin. It may be that it is not strictly speaking immemorial on certain occasions because the Courts may come across witnesses sufficiently old to remember that during some time in the past in their childhood, such a custom did not prevail. But to prove the custom the long uninterrupted practice recognized by the community as a whole has got to be established. Law on this point is to be found in the Evidence Act, deference to which will be made presently. The custom may also have its origin in some lost grant. In such a case it will not be strictly speaking, a customary right but a right flowing from the lost grant, but even then the custom can be proved by exercise of the right by the community or locality. In all such cases members of the community must be examined to prove the existence of such a long-standing custom as the communitys custom. The mere statement by a witness that he saw the plaintiff using the defendants pond for watering his own crop on his own land does not amount to evidence of custom recognized by the community. Moreover, it is anomalous to told that ready became the plaintiff was allowed to take water from the defendants pound and that he was taking water in such manner for nearly 30 years does not create any custom enforceable against the defendant. By and large the custom has got to he recognized by the community as a whole. The beneficiary of the custom may be an individual. We have for instance, customary right for a particular member of a family and his descendants to perform the puja of a deity. The beneficiary of such custom is no doubt, a particular member of a family. But the point is that the custom is recognized by the community as a whole and that is why it partakes the character, in a sense, of customary law applicable for the people governed by that custom. The custom is not vis-a-vis individuals with the community having no interest in the same. It can never be. But this is the precise thing sought to be pleaded and proved by the plaintiff and hence, this suit is liable to be dismissed on this narrow ground itself.

       This is so much of a settled law that no authority as such, is necessary for this purpose, but If any authority" to be Cited. one may conveniently refer to the judgment of the Nagpur High Court in Raghoba v. Anandabhai & ors., AIR 1930 Nag p. 40, where it has been held that a customary right can be acquired only in favour of class or community.

       What is set up by the plaintiff is not custom at all.-In para 2 above 1 have extracted the relevant portion of the plaintiff which shows that the real claim of the plaintiff is not even of custom. What he has set up in reality, is a practice which is according to the plaintiff, "being followed since the time the plaintiff cultivated the said field". This is not a pleading of custom; this is not a pleading of its distant origin. This does not spell even the frills of custom, for less of any customary right.

       Moreover our law does not know of cases where the plaintiff claims a right flowing from a custom is or can he himself the progenitor of the custom. From the nature of things, a custom is something the originator of which is known to none by certainty. Ex-hypothesis, therefore, plaintiff cannot claim to have started a custom. He may start a practice (which is pleaded by him). But the practice cannot lead to the legal consequence to which a custom leads.

       The beautiful document.-In support of his claim for customary right the plaintiff relied heavily upon a certificate issued by the Comunidade giving an extract of some book of agreements and assessment of paddy fields.

       Even a cursory glance at these two Clauses h enough to show that the two clauses have not a ghost of a relevance with the kind of right claimed by the plaintiff. All that Clause Tenth says is that the rain water shall be dammed in ponds dams and springs as per the usage and custom, meaning thereby that the damming operation will not be in any other manner. The Clause gives no inkling about the question as to who is to be the beneficiary of the water in the pond. In any event, the Clause does not even indicate that the water in the pond can be used, as of right, by anyone who does not own the pond.

       Section 2-what is the distinction between customary easement and customary right.

       An easement is required to be acquired by particular modalities. But the easement goes with the land or, rather with the lands: the land which claims the easement (dominate tenement) and the land which is subjected to easement (servient tenement).

       Customary easement vests in the dominant tenement, not in the particular person or a group of persons (unless they are rightfully in possession of the dominant tenement in question). A customary right, on the other band is claimed by a person or by a group of persons on the basis of the custom recognised by the community as a whole. From the very nature of things, a customary right is the one which results from a custom and, hence, the custom has got to be pleaded and proved in the usual manner, indicated by the Evidence Act. The object of proof and the mode of proof are entirely different in the two cases.