JUDGMENT

Madeley, J - This is a plaintiffs' second civil appeal. The parties are residents of Mati, and the case of the plaintiffs was that there was a road in the village leading from the house of the plaintiffs to a place where rubbish is deposited and then used for manuring the fields. The plaintiffs alleged that the defendants had without any right built a verandah and a room on the roadway and they prayed for demolition of the, new constructions. The plaintiffs said in their plaint that they had been using this roadway for 20 years and more. The defendants among other things pleaded that they had the permission of the zamindar. This plea of the defendants was negatived by the trial Court which further held that the plaintiffs had a right of way over the path in question and that they were in the habit of driving their bullock carts over the path. The constructions blocked this path or roadway and a decree for their demolition was passed. The learned Munsif in his judgment stated that the plaintiffs claimed an easement, and in his finding he said that they had a right of way. He did not, however, specify whether this right 'of way was common to all the members of the village and whether this was a village pathway or whether the plaintiffs had acquired a right of easement by over 20 years' user against the zamindar. The two positions are quite distinct, the second consisting of a private right with dominant and servient tenements and the first of a customary right common to some particular class of persons or to persons living in a particular locality. In appeal the learned Civil Judge quoted in his judgment the three kinds of such rights to be found in India, as well as in England, from a decision reported in Harisadhan De v. Radhika Prosad, AIR1938Cal202 The three distinct classes of rights of way are:

First, private rights in the strict sense of the terms vested in particular individuals, and such rights commonly have their origin in grant or prescription; secondly, rights belonging to certain classes of persons or certain portions of the public, such as the freemen of a city, the tenants of a manor, or the inhabitants of a village, and such rights commonly have their origin in custom; and thirdly, public rights in the full sense of the terms which exist for the benefit of all the king's subjects, and the source of these is ordinarily dedication.

2. Before the Civil Judge the parties to the appeal agreed that the right enjoyed by the plaintiffs, if any, was of the second kind. The position that they had acquired a private right of easement by prescription was definitely abandoned. The learned Civil Judge came to the conclusion that the taking of rubbish by five persons over this land in their carts did not make the path a village pathway. Of the said five persons one is the defendant himself, and he denies the right alleged by plaintiff. One of the numbers over which the manure is carried is part of a tank during about four months of the year and carts could not go over it during that period. Additional reasons for not regarding this as a village pathway have been suggested by the respondents' learned Counsel. One is that no customary right to store the "kora" or rubbish at the place where it is said to be stored has been established, and therefore no customary right to take it by a certain pathway to that place could exist. As remarked in Harisadhan De v. Radhika Prosad, AIR1938Cal202

proof of a customary easement is immensely more difficult than proof of an easement within the provisions of Section 26, Limitation Act. The persons who rely on custom must prove that it was ancient, continuous, peaceable, reasonable, certain and compulsory.

3. In Taluk Board, Dindigul v. Venkatarama Aiyar, A.I.R. 1924 Mad. 197 it has been held that indiscriminate miscellaneous user of village waste land cannot establish the fact that such user had become a customary law of the place in respect of the persons and things which it concerned.