User as of right.

The plaintiff is the appellant in this second appeal, and the dispute relates to a right of pathway cutting across his land and marked in red A B C in exhibit A-1, the plan prepared by the commissioner who was appointed to inspect the site and submit a report with a view to have a proper and adequate appreciation of the points in controversy. The defendants, who are resisting the suit, claim the right of pathway, their case being that the residents of various villages on the west of the Government poramboke cart track marked as G P C T in the plan running in S. No. 49/11 have been going from the west to the Sethu Rastha on the east The various portions of the pathway have been marked red in the commissioner’s plan. Some portions of the pathway pass through Government poramboke land in which a tank exists called Ayyanar Thidal near Sannathi Road cutting Sethu Rastha. As observed earlier that portion of the pathway A B C which is the connecting link on either side of the pathway (between G P C T and Sethu Rastha) cuts across the cultivable land of the plaintiff in which tobacco crop has been raised and at the point AB a fence has been put up by the plaintiff which resulted in the defendants asserting their right of way through A B C and objecting to the plaintiff’s putting up the fence. As the plaintiff would not remove the obstructions at the points A and C and restore the pathway the defendants cut the fence with the result that the plaintiff had filed the suit for a declaration of his title to the lands through which the pathway ABC runs and also for a permanent injunction against the defendants from interfering with the plaintiff’s right to put up the fence at the point A and C.

A perusal of the written statement filed by the defendants shows that they have no precise legal basis on which the right to the pathway was claimed by them. All kinds of imaginable claims were put forward in the written statement an easement of necessity, a right based upon custom and a right of user of the disputed pathway by several villagers including the public at large as a public pathway for people, the general public, at the western end to go to the eastern end either to the Ayyanar Thidal tank or to the salt pans in the east near Sethu Rastha. It may even be mentioned at the outset that a perusal of the written statement shows that the claim is substantially on the basis of a public pathway involving a dedication to the public. I will advert to this aspect a little later.

Both the Courts below rightly came to the conclusion that the case is not a case of easement either by grant or of necessity, as there is no question of dominant and servient heritage, that the right claimed is purely a personal right. Both the Courts also rightly came to the conclusion that if at all the right of the defendants is to be upheld it could only be on the basis of a customary right coming within the principle of the decision of the Privy Council, in Lakshmidhar Misra v. Rangalal1. It has to be noticed that the burden of establishing this customary right is upon the defendants as they claim a right of way over the lands of someone else. The learned District Munsif, on a consideration of the evidence and in the light of the averments in the written statement, came to the conclusion that on the evidence adduced by the defendants they have totally failed to discharge the burden of establishing the customary right.

Even at the threshold I may mention that the learned District Munsif has written a very well considered judgment and in his approach to the problem for decision he has kept in mind, the correct legal principles. He has come to the conclusion that the evidence adduced on the side of the defendants worthless besides being wholly insufficient to make out the customary right. The learned District Munsif also came to the conclusion that the evidence adduced on the side of the defendants did not satisfy any of the conditions ancient, continuous, peaceabl