The main legal point established in the judgment is that the evidence must establish a customary right to graze cattle on the land, and an increase in rent within a few years undermines the establishment of such a right.

1. The plaintiff, the Poligar of Chettedi, is the appellant before us. His claim in this suit was for a declaration that the kanoha lands described in the plaint belong to him and for a perpetual injunction restraining the defendants from grazing cattle or trespassing thereon, or, in the alternative, for possession in case the defendants or any of them should claim to be in possession of the lands. The defendants set up in defence that they had an occupancy right in respect of the lands, that it was a customary right that was possessed by them of grazing cattle there on payment of Rs. 170 per fasli and that they further had the right of taking brushwood, etc., from the lands and also of cultivating portions of the lands. It must be observed that the judgment of the learned Subordinate Judge is very unsatisfactory. He held that there was a customary right in the defendants to graze the cattle there on payment of Rs. 170 per annum and awarding to the plaintiff the rent in respect of two faslis dismissed the plaintiffs suit in other respects. The so-called customary right set up by the defendants appears on examination to be based merely on user of the lands for purposes of grazing from the year 1912, paying to the plaintiff a sum of Rs. 170 per annum. Before that it is clear that the rent collected by the plaintiff from the tenants for purposes of pasture was about Rs. 114. It is difficult to imagine how any customary right or even a prescriptive right came to be acquired or established by the use of these lands for purposes of pasture with the permission of the plaintiff during the years since 1912. The documents that have been filed in the case leave no doubt whatever as to the real rights of the parties. In Ex. V (a), which is an account kept by the plaintiff in respect of these pasture lands, it is clear that small sums of money at so much per head of cattle appear to have been Collected by the landlord for the grant of permission to the tenants to graze their cattle there. In Ex. N, the written statement filed by these very tenants in O.S. No. 285 of 1911, the tenant? admitted that the cultivation of the small pieces of land comprised within the kancha lands was discontinued for 45 years or so. Ex. Q is a sample of the kararnama entered into between the plaintiff and the defendants from the year 1912. We find there that such kararnamas were entered into between the tenants and the landlord, and for the purpose of getting the permission of the landlord for grazing cattle, applications, it is clear, were made by tenants and darkhjasts were issued: In Ex. B, for instance, we find that the tenants pray that the landlord may grant the said field to the tenants for fasli 1326 for a reasonable amount after inspecting the grass now grown and obtaining a kararnama.

2. Exhibit C is another kararnama and there is a provision there for delivery of possession of the kanchas being given to the landlord at the end of the fasli. All these documents clearly show that during the whole period under reference the tenants used always to apply to the landlord formally for permission to graze the cattle and such permission was granted on terms agreed to between the landlord and the tenants. How, in these circumstances, any right in the defendants would come to be recognized, or how any customary right to graze cattle in these kanchalands on payment of a customary rent of Rs. 170 can be established, it is impossible to conceive. No doubt such a right can be established by proper evidence if it is made out that from time immemorial the tenants have enjoyed it as of right and if from the circumstances it could be gathered that the right was enjoyed by them customarily or might be due to a lost grant. But in a case of this sort, where the rent has been increased within living memory, really within a few years, and where on every occasion on which the landlord grants permission to the tenants to graze the cattle they have had to apply for it an