Easement, customary right and easement on the ground of lost grant are all fundamentally distinct. In the case of Gopal Krishna Sil V/s. Abdul Samad Chaudhuri, AIR 1921 Cal 569 (A) their Lordships of the Calcutta High Court observed as follows: "But it is indispensable that when a customary right is claimed, it should be specifically pleaded; all the essential requisites to its validity and binding effect must be averred and the custom so pleaded must when put in issue be proved as laid. When the plaintiff sets up a prescriptive right, he cannot in fairness to the defendant be allowed to succeed on the basis of a customary right. The two are fundamentally distinct, for as has been well said, custom differs from prescription in the fact that prescription is the making of a right while custom is the making of a law."

Kanhaiya Singh, J.

1. This is an appeal by the plaintiffs from a judgment and decree of the Additional Subordinate Judge, Chapra, dated 30th November, 1951, affirming the decision of the Munsif of the same place dated 23rd December, 1949.

2. The suit related to plot 319 measuring 8 kathas 17 dhurs situate in mauza Rusi. In the re-cord-of-rights this plot has been recorded as ghair-mazrua malik land. To the immediate west of this plot are situate two plots 320 and 321, north to south, which constitute the Sahan of the plaintiffs, and to the adjacent west of this Sahan lies their residential house. I may point out that while the residential house of the plaintiffs is situate in mauza Mairwa the disputed plot along with plots 320 and 321 falls in mauza Rusi.

The plaintiffs claimed title to disputed plot 819 by virtue of a settlement from the landlords. They alleged that they obtained settlement of half of this plot in 1330 fasli (1923) and of the remaining half in 1355 fasli (1948) and obtained possession of the land soon after the settlement. The plaintiffs case further was that subsequent to the settlement the major portion of the disputed plot was brought under cultivation and mustard and peas were grown thereon and that they also put up a Bhusaul on a portion of the land and stored cow-dung in the other portion. The defendants first party interfered with their possession on 26-11-1948 by forcibly uprooting the mustard and peas and converting that portion into a Khalihan for stacking bundles of paddy. Hence this suit for possession with mesne profits after establishment of their title thereto.

3. The main contest was between the plaintiffs and defendants 1 to 7. Out of the remaining defendants, some supported the plaintiffs and some the contesting defendants. The contesting defendants (hereinafter referred to as the defendants) denied both the title and possession of the plaintiffs and alleged that the entire settlement was invalid and illegal because plot 319 was ghair-mazrua am (public property) and not khas property of the maliks.

They denied further that the plaintiffs had got any Bhusaul upon the disputed land and asserted that defendant 1 had constructed mud-built Berhi for storing chaff and that defendants 1, 2 and 6 and Lachhi Ram had also shifted their bathan (cowshed) to the disputed land, because of heavy rains, and had also kept cowdung there. It was further alleged that defendant 1 had planted brinjal and Ramtoroi. Their main defence, however, was a defence of acquisition of customary right to hold Khalihan on the disputed land.

In the written statement this right was asserted in the following manner. The disputed land had been in possession of these defendants and Satnarain Thakur (respondent 14), Bindeshwari Thakur (respondent 12), Sohawan Thakur (respondent 11), Dukhharan Kohar (respondent 17), Lachmi Ram Mahto (respondent 18) and their ancestors from time immemorial, which has been used as Khalihan for keeping paddy, rabbi and maize crops and no obstruction was ever made on behalf of the proprietors.

The aforesaid tenants with their title and without obstruction continued to keep their khalihan to the knowledge and information of the proprietors, on account of which these defendants and also Bindeshwari Thakur and others had already acquired right of easement and customary right therein. The proprietors or anybody have got no right to dispossess them. These defendants have also acquired absolute title according to custom.

4. The learned Munsif framed as many as eight issues, two of which only may be reproduced below :

"5. Have the defendants acquired any customary right of using the disputed land as a common husking ground?

6. Have the disputed lands been settled with the plaintiffs by the landlords? Is so, is the settlement by the maliks in favour of the plaintiffs genuine and valid and have the plaintiffs acquired any title over the disputed land by virtue of the said settlement and had they ever bee