A customary right must be possessed irrespective of other immoveable property and does not contemplate the existence of two different tenements, dominant tenements and servient tenements.

JUDGMENT :- The defendants are the appellants in this second appeal. The suit was for a permanent injunction restraining them from obstructing the plaintiffs from their using a channel marked A B C D in the plaint sketch over the lands of the defendants, for a mandatory injunction and other ancillary reliefs. The plaintiffs are the present owners of two survey fields S. Nos. 294/3 and S. 294/5. They became entitled to the same under three sale-deeds Exs. A-1 to A-3 in the year 1959, and their predecessor-m-title became entitled to the land under assignments by the Government in 1950. Ex. A-6 is an order directing the assignments. It is dated 27th April 1950 and the order states that the lands were temporarily assigned to the persons noted for raising unirrigated dry crop subject to the conditions set out therein. One of the conditions is that there should be no wet cultivation on the lands assigned unless and until she grantee obtains a permit on application to the Executive Engineer, Periyar Division, Madurai. The condition provides that even if dry cultivation was not possible wet cultivation was not permissible and Periyar water should not be used without permission, either directly or by percolation. The actual grant pursuant to the order embodies the same condition. In the plaint though originally there was no specific basis for the claim, by way of an amendment the right to

have a channel over the lands of the defendants, namely, S.F. Nos. 294/1 and 294/2 was based as an casement of necessity or a customary easement. The claim to have a channel over the land of the defendant's was not based on any other right. The learned District Munsif observing that it was an admitted fact that the suit survey numbers have no other source of irrigation except by the suit channel and finding that the evidence adduced on the side of the plaintiffs clearly showed that the suit lands were irrigated only with Periyar water running along the suit channel over the lands of the defendants, held in favour of the plaintiffs. It must be remarked here itself that the decision does not specify on what right the claim has been found, whether as easement of necessity or as customary easement.

2. On appeal by the defendants the learned Subordinate Judge makes an entirely different approach. It may be taken as a finding of fact of the Courts below that the period during which the plaintiffs have been irrigating their lands through the channel on the defendants' lands was about 9 or 10 years. The learned Subordinate Judge himself observes that it was fairly clear that the lands of the plaintiffs were not entitled to be irrigated with Periyar water except with the permission of the Executive Engineer and that it appeared that the land assigned was irrigated in an irregular way with Periyar water through the channel on the defendants' lands. The rights having been enjoyed for about a period of ten years only, naturally the plaintiffs have not based any claim to the channel on any casementary right. The learned Subordinate Judge observes as follows :

"The counsel for the plaintiffs-respondents made it clear that the right claimed by his clients was based purely on custom. He conceded that they gave up the basis of the claim founded on easement of necessity and customary easement".

It is further observed that there can be no scope for any right of casement of necessity as it was not claimed that the right claimed was available and was exercised at the time of the assignment so as to attract the operation of S. 13 of the Indian Easements Act. However, the learned Subordinate Judge considers that as the period of user required for the acquisition of a customary right is not the period necessary for acquisition of an easement right, customary rights being saved by reason of S. 2(b) of the Indian Easements Act, having regard to the facts of the case, the period of ten years of user found in the case was sufficient and reasonable to give a customary right