Channanam Pillay and Others vs Manu Puttur and Others

The real question raised by the plaintiffs has not been tried by the District Judge. Assuming that the tank belongs [49] to the defendants, the

plaintiffs may still be entitled to use. the tank if they can show that the tank has been from time immemorial used by the inhabitants of their village as

of right. This is the claim clearly laid in the plaint, and it is one which is maintainable without establishing an easement in the strict sense in which that

term is used in the Basements Act. Customary rights other i than those claimed in respect of immovable property are specially saved: by the Act.

The right to use the tank for bathing purposes is one which may be claimed as a customary right by the inhabitants of a certain village, such a right

must be confined to the inhabitants of a particular place, and it must otherwise be a reasonable one. If claimed on behalf of the public generally no

action would lie unless special damages Were proved.

In considering the evidence it is important to see whether the user was as of right, that is to say, without interruption and without leave asked for

or granted. It may be that the use is limited in respect of time or otherwise. Still a customary right may exist.

We must ask the District Judge to return a finding oh the first issue with reference to the above observations.

NOTE.--See Section 2 Act V of 1882. See Fitch v. Rawling (1795) 2 H. Bl. 394 and Allgood v. Gibson (1876) 34 L.T. 883