(1) These appeals arise out of o. S. No. 53 of 1950 filed by respondents 1 to 5 on the file of the district munsif's court, tenali. The suit having been decreed, the 1st defendant filed a. S. No. 142 of 1952 and the 2nd defendant filed a. S. No. 18 of 1952 on the file of the subordinate judge's court, tenali. Both the appeals having been dismissed, second appeals nos. 2517 of 1952 and 804 of 1953 have been preferred to this court by defendants 1 and 2.
(2) The suit was instituted by respondents 1 to 5 for a declaration that the villagers of erikalapudi were entitled to a right of easement in d. No. 493 covering acres 3 - 78, for a mandatory injunction directing the state of madras to restore the d. No. 493 to its status quo ante as in 1948 and for a peimanent injunction restraining the state of madras from passing any further orders in favour of the 1st defendant in respect of the land for any kind of occupation or user any further and for other reliefs. The case of the plaintiffs was that d. No. 493 originally formed part of the village of pasupuletivaripalem, that, in raktakshi cyclone, the villagers shifted to the present erikalapudi village and that the entire area (formerly pasupuletivari palem) was being used as the land of all the villagers as mandavayalu wherein their cattle would stay and stray daily. It was also alleged that the suit land was being used for thrashing paddy, for boiling and drying turmeric, as a playground for the school - children in the village and for other general and communal purposes. In paragraph 6, it was alleged that on theeastein and western side of the suit land, there are clonkas used as cart - tracks from the village of erikalapudi and that there is a bodi channel running across the suit land in continuation of the channel in d. No. 501 from east to west taking water into d. Nos. 478, 479, and 488, etc. The plaintiffs contended that the state of madras had no right to assign this land to the 1st defendant as it was being used for communal purposes.
(3) The 1st defendant filed a written statement admitting that the suit land was no doubt formerly a village site and that it was subsequently transferred to cattle stand porarnboke in accordance with the orders of the special deputy collector in his no. 892 g - 1. Dated 9th july, 1914. In paragraph 9, he contended that the village had neither acquired any right by custom or usage in the suit lands nor did they acquire an easementary right therein. The state of madras filed a written statement supporting the 1st defendant and contended that the grant in favour of the 1st defendant was made in accordance with the rules framed by the madras state for giant of lands to political sufferers.
(4) In a careful and well - considered judgment, the district munsif of tenali held rejecting the oral evidence adduced on behalf of the appellants herein, that, for more than 60 years, the villagers of erikalapudi have been using the suit land for the se\eral purposes mentioned in the plaint. He held from the evidence on record that it might be presumed that there was a grant or dedication of the suit land by the pillagers of pasupulolharipalem (who settled in the village of erikalapudi) for the communal purposes mentioned in the plaint. He further held that the plaintiffs had acquired the right under a custom and observed as follows : -
"in my opinion, the uninterrupted, long and continued user of the suit schedule land and the cart - tracks and the bodi by the plaintiffs lor over 60 years can also be attributed to the custom."
in paragraph 12, he found that the state of madras did not follow the instructions issued in g. O. No. 1523 (revenue) dated 11th june, 1949, and that the grant to the 1st defendant was consequently invalid. In the result, he decreed the suit. On appeal, the subordinate judge confirmed the decree, subject to slight modifications. Hence the second appeals have been preferred to this court.
(5) The learned government pleader appearing for the state of andhra contended that the courts below erred in holding that the rights of the villagers were referrable to a dedication or a lost grant, that the necessary ingredients to constitute a customary right or easement were made out, and that the grant to the 1st defendant was not in accordance with g. O. No. 1523 (revenue) dated 11th june, 1949. The learned advocate for the respondents sought to support the judgments of the courts below not on the ground of dedication or lost grant, but on the basis of a customary right and easement. He also contended that the grant to the 1st defendant was not in conformity with the g. O. Referred to already. So, the two questions that fall to be determined in the second appeals are (1) whether the villagers of erikalapudi have made out the customaiy right and easement pleaded in paragraphs 5 and 6 of their plaint, and (2) whether the grant in favour of the 1st defendant is in accordance with g. O. No. 1523 (revenue) dated nth june, 1949, and valid.
(6) As the courts below concurrently found that the villagers of erikalapudi have made out the customary right and easement pleaded in the plaint, it is not necessary for me to discuss the evidence in detail. I shall, however, refer to a few material documents and the findings arrived at by the courts below, on the evidence adduced by the parties. The earliest document produced in the case is a certified copy of survey and settlement register, marked as exhibit a - 8 and it shows that s. No. 493 measuring about acres 4 - 04 is described as government poramboke, in column 4. In the remarks column no. 12, it is mentioned as " village site of pasupuleti - varipalem. " it is admitted that in 1914, the survey number was entered as a cattle stand poramboke in the revenue register as per the order no. 892 g - 1. , dated 9th july, 1914, of the special deputy collector. This document is not produced but it is however referred to in exhibit b - 6, a report submitted by g. Papayya, the special revenue inspector, examined as d. W. 8. S. No. 493 measuring acres 3 - 78 is shown under column 3 as cattle stand poramboke. In column 5, it is noted that a harijan and a telaga had encroached upon the land to the extent of 3 cents and 8 cents and that the encroachment by the telaga was subsequently removed. In the remarks column, it is stated that this was an old village site which was said to have been converted into cattle stand poramboke and that it is more than a mile from the hamlet village erikalapudi which consists of about 100 houses with a population of about 700 or 800. It describes the nature of the land and the donkas. It further states that the survey number was not being used for the purpose for which it was originally intended. Recommendation is made that excluding the extent of 3 cents encroached by the harijan vettee and 12 cents of the kunta protruding into the survey number, an extent of acres 3 - 60 was available for grant to the political sufferer. It appears that in 1944, an extent of acres 2 - 52 out of s. No. 493 was assigned by the revenue divisional officer, tenali, to singamsetty srikrishnamurty, a relation of the revenue inspector (s. Venkateswarlu) for cultivation during fasli 1354. Objection was raised by the ryots to the assignment by means of their petition to the district collector, marked as exhibit a - 2. The 1st defendant's brother was also a party to that petition. The district collector upheld their contention that the suit land was being used for communal purposes and could not be granted for cultivation. Evidence was also let in that an assignment made of the suit land to k. Narasimharao was cancelled on the representations made to the deputy collector, r. D. Paul of tenali, who inspected the suit poramboke. When the state of madras granted the suit land to the 1st defendant, a political sufferer for purposes of cultivation, the panchayat board passed a resolution, marked as exhibit a - 3 that the grant was in contravention of their legal rights. The documentary evidence, therefore, leads to the conclusion that what was originally the village site of pasupuletivaripalem was registered as mandabayalu in the government records and was being used for that purpose. A number of witnesses were examined on behalf of the plaintiffs, respondents 1 to 5 herein, to prove the various purposes for which the land was being used. In paragraph 8 of his judgment, the district munsif discussed their evidence in detail and wound up by concluding in the following terms : -
"thus from the evidence of the plaintiffs, it can be clearly seen that their contention that the suit schedule land had been used for communal purposes for over 60 years and they acquired a right to use the suit schedule land for the above purposes without any obstruction by the government is proved"
.
In paragraph 10, he discussed the oral evidence of the witnesses examined on behalf of the appellants herein. He observed that the evidence on their behalf was all got up and artificial and that much reliance could not be placed. Having regard to the terms of exhibit b - 4, he held that the evidence of d. Ws. 1 to 6 that the suit land was never used for communal purposes was obviously false. He criticised the evidence of d. Ws. 2 to 6 as being artificial and rejected their evidence. He has given cogent reasons in paragraph 10 for rejecting their oral testimoney. He rightly observed that though there were factions in the village and criminal cases between the parties, they do not detract the evidentiary value of p. Ws. Regarding the case of the plaintiffs when especially there is the documentary evidence in support of it.
(7) He concluded in the following words : -
"taking into consideration all these circumstances, i am of the opinion that the plaintiffs have clearly shown that they had been using the suit schedule land for communal purposes lor more than 60 years openly, uninterruptedly and without any obstruction from the government and they perfected their right to so use the land. They have also shown that the cart - tracks had been in existence for more than 60 years and that they have acquired a right to use the cart - tracks without any obstruction from the government and their evidence also clearly shows that the bodi channel in d. No. 501 passed throvigh the suit schedule land and it is the source of irrigation for the wet lands on the west of the suit schedule lands. From the evidence it necessarily follows that the villagers are deprived of the suit land by grant to 1st defendant, which is the only land to be used for communal purposes."
On appeal, the subordinate judge confirmed the finding of the district munsif. In paragraph 4, he discussed the documentary evidence and found that the villagers of pasupuletivaripalem who had left the village long ago and settled down in erikalapudi must have been necessarily using the land for communal purposes. Referring to the oial evidence, he held
"that it was so used has been spoken to by a number of aged witnesses in this case and there is possibly no reason to disbelieve their evidence."
(8) In paragraph 5, he referred to the several attempts made to convert the suit land into wet land and the orders by the revenue authorities cancelling the assignment. He rightly commented upon the removal of the relevant page from the adangal. In paragraph 7, he referred to the oral evidence in the following terms : - "so far as the oral evidence in this case is concerned, the learned district munsif has devoted much of his attention to the consideration and examination of it. Having regard to the facts of this case i should think that the learned district munsif has exercised his discretion correctly in appreciating the evidence let in in this case. He has found that there is a ring of truth in the evidence let in on behalf of the witnesses examined for the plaintiffs and a ring of falsehood in the evidence of the witnesses examined for the defendants. Where the judge, who has seen the witnesses and has heard their evidence comes to the conclusion that a particular set of witnesses are credible, it required circumstances of exceptional character to justify a court of appeal in coming to a different conclusion. In a case involving a question of fact the decision of which depends on the reliance to be placed on the testimony of the witnesses, the view of the judge who tried the case and saw the witnesses is entitled to a great weight. The fact whether the suit land was enjoyed by the villagers of erikalapudi for communal purposes for the prescriptive period is a question of fact to be gathered from the evidence of witnesses. Nothing has been shown to me that the lower court has gone wrong in any manner in appreciating the oral evidence placed before it. I hold that the conclusions reached by the lower court on all the points in dispute, which are very clearly reflected in all the issues framed in this suit are absolutely correct.
(9) In paragraphs 8 and 9, he discussed the evidence relating to the donkas and the bodi and affirmed the finding of the district munsif. The main criticism levelled by the learned advocates for the appellants is that the appellate judge has not discussed the oral evidence of the several witnesses in seriatim or in detail and that the appeal should be remanded to the appellate judge for a proper appreciation of the oral evidence or that a fresh finding should be called for from him. Order 41, rule 31, civil procedure code, provides that the judgment of the appellate court shall state (a) the points for determination (b) the decision thereon (c) the reasons for the decision and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Section 100, civil procedure code, enacts that a second appeal lies, only on a question of law, to the high court. As no second appeal lies from a finding of fact arrived at by the lower appellate court, it is absolutely necessary that the appellate judge should address his mind to all questions of fact and law and record clear and specific findings giving cogent reasons for his decision. The judgment is the only ultimate medium through which the high court can ascertain whether the evidence was really looked into and properly appreciated. Though the judgment of the trial court is entitled to great weight, when it is based upon the appreciation of oral evidence and upon the observations made by the trial judge on the demeanour of the witnesses examined before him, it does not follow that the appellate judge is not at liberty to examine the impiobabilities or the discrepancies in the oral evidence or differ from the conclusion of the trial court under any circumstances. It would, no doubt, have been more satisfactory, if the subordinate judge had discussed the oral evidence in greater detail and given reasons for accepting the oral evidence of the plaintiffs' witnesses in preference to the evidence of the defendants' witnesses.
(10) In this connection, i wish to refer to the recent decision of subba rao, c j. , in s. A, no. 1952 of 1950 mummidvarapu ramayya setti v. Kamada yellayya varma, (1954) 2 m. L. J. Short notes page 81. Wherein, he observed as follows : -
"it is true that the learned judge has not summarised the oral evidence again and given specific reasons for rejecting it. Perhaps it would have been better if he did so. But, in the case of concurring judgments, more often it is only an idle formality."
(11) I however wish to add that even in concurring judgments it is not only advisable that they should summarise the oral evidence and give reasons for accepting or rejecting the same but it is also incumbent or necessary for them to do so in order to enable the high court to decide whether the finding of fact which is regarded as final and conclusive is arrived at by the appellate court after due appreciation of oral evidence. Having carefully gone through the judgments, i do not think it necessary to call for any revised finding. The findings are supported by the evidence on record and i agree that the land was being continuously and uninterruptedly used for the several communal purposes set out in the plaint for over 60 years. I do not agree with the learned advocates for the appellants that it is only from 1914, when it was registered in the revenue records, that the land was being vised as mandabayalu. Even though it was so registered in 1914, in my view, it must have been used for that purpose from a long time anterior thereto. The encroachments referred to do not, in any way, affect the nature of the user. The adjoining harijan and telaga might have attempted to encroach upon small portions of this land and convert it into wet land. The encroachment by the telaga was admittedly removed. The attempts to obtain the land on assignment do not also prove that the land was not used for the purposes spoken to by the plaintiffs' witnesses. Whenever such attempts were made the ryots petitioned to the revenue authorities and they were successful except in the present instance. As the state of madras refused to cancel the assignment in favour of the 1st defendant, the suit had to be necessarily instituted.
(12) On these facts, the question that arises for consideration is, whether a customary right has not been established, as found by the courts below. Lord radcliffe has discussed this question of customary right in lakshmidhar misra v. Rangalal, (1950) 1 m. L. J. 100 : l. R. 76 i,a. 271 i. L. R. 29 patna 1 (p. C.) the question before the judicial committee related to a cremation ground ; but the principles laid down in that case ate equally applicable to this case. At page 102, the learned law loid summarised the legal position in the following terms: -
"in their lordships' view the true legal basis of such rights lies in custom. This is as much the case in india as it would be in england. Indeed this is the view which is fully set out in the judgment of mr. Justice b. K. Mukherjea in asrabulla v. Kiamatulla, i. L. R, (1937) 2 cal. 86, a customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large fitch v. Rawling, (1795) 2 hy. B1. 393. The custom, if established, makes the local law of the district and it creates a right in each of the inhabitants irrespective of his estate or interest in any particular property. The courts of england have upheld many customs in different parts of the country - side which have had the effect of binding some piece of land to the perpetual service of the village or district. The claims so upheld are not different in any essential respect irom the claim to the cremation ground in the village of byree which is in question here. A custom for the inhabitants to dance upon a piece of ground for their recreation (abbot v. Weekly) , (1665) 1 levins 176:83 e. R. 357. A custom to use a close for exercise and play at all kinds of lawful games, sports and pastimes filch v. Rawlins a custom to enter upon a certain land, erect a maypole thereon and dance round and about it.
Hall v. Nottingham, (1875) 1 ex. D. 1 what the courts have required of a custom, if the law is to uphold it as a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use. It is by these tests that the appellants' claim in this case must be tried."
(13) Adopting these tests to the facts of this case, i hold that the respondents 1 to 5 have proved the customary right and easement. The rights are being exercised continuously for over 60 years. The land is being used as mandabayalu. The crops which are cut are stored on the land till they are thrashed. The ground is used as a thrashing floor. It is also used for boiling and drying turmeric. The children of the village use it as a playground. There is nothing uncertain or unreasonable in the user and consequently in the nature of the right exercised by the villagers. The only question that remains to be considered is, whether the requirement that the custom should be immemorial in origin has to be proved and has been proved in this case.
(14) In kuar sen v. Mammon, (1895) i. L. R. 17 all. 87. A question arose whether the principle of the english common law that a custom is not proved if it is shown not to have been immemorial is applicable to the conditions of this country. The answer furnished by the bench of the allahabad high court is in the following terms : -
"to apply such a principle as we have been urged by the counsel for the appellant to do would be to destroy many customary rights of modern growth in villages and other places. The statute law of india does not prescribe any period of enjoyment during which in order to establish a local custom, it must be proved that a right claimed to have been enjoyed as by local custom was enjoyed. And in our opinion it would be inexpedient and fraught wilh the risk of disturbing perfectly reasonable and advantageous local usages regarded and obseued by all concerned as customs to attempt to prescribe any such period."
(15) This decision was followed by the madras high court in palaniandi tevan v. Puthirangonda nadan, (1897) i. L. R. 20 mad. 389. The learned judges held as follows : - "no fixed period of enjoyment is laid down by law as necessary to establish a customary right. The character and length of enjoyment which are necessary for such purpose have been, in our opinion, correctly laid down in kuar sen v. Mammon. In mussammat snbhani v. Nawab, (1940) i,l. R. 28 lab. 154 (188) : l. R. 68 la. 1 (p. C.). The judicial committee held that the english rule stated in blackstone's " commentaries " that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary," was either apposite or useful, when applied to indian conditions. The following observations are very apt and summarise the essential requirements of a valid custom : -
"it must be ancient ; but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man - still less that it is ancient in the english technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common cr nsent, been submitted to as the established governing rule of the particular district. Having regard to the circumstances under which local customs have arisen and do arise in india, both with reference to muslims and hindus, and the ease and frequency with which people migrate from one district or province to another, it would, in their lordships' opinion, create great perplexity in the already uncertain character of customary law to require that, in every case, the antiquity of a custom must be carried back to a period which is beyond the memory of man. Insistence upon such proof would also involve a complete ignoring of the caution, which was uttered in a judgment of this board in the case of abdul hussein khan v. Bibi sana dero, (1917) l. R. 45 i. A. 10, 14. Where their lordships adverted to the difficulty of applying ' the strict rules that govern the establishment of custom in this country to circumstances which find no analogy here'."
(16) In panchanon ray v. Fazlur rahman, air 1942 cal. 505. Biswas, j. , applying the principles laid down in the cases referred to supra, followed these decisions. I hold that the strict rule of english law governing the establishment of a custom, namely, that it should be immemorial in its origin, are not applicable to this country. The learned advocates for the appellants contended that as the suit land was registered as village site in exhibit a - 8 in 1873, the custom, if at all, must have originated subsequent to that date and that consequently the right cannot be regarded as immemorial. The passage in blackstone's " commentaries " "a custom in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary. " so that if any one can show the beginning of it, it is no good custom, was relied on in support of this contention.
(17) As i have already stated supra, the technical rules of english law ought not to be imported in their entirety to this country. In the decision of the privy council in lakshmidhar misra v. Rangalal, (1950) 1 m. L. J. 100 : l. R. 76 i. A. 271 : 29 pat. 1 (p. C.). No reference is made to the privy council decision in mussamat subhani v. Nawab, (1940) i. L. R. 22 lahore 154 (188) : l. R. 68 la. 1 (p. C.). Or the decisions of the high courts of allahabad, madras and calcutta referred to supra. I am therefore not prepared to take the view that lord radcliffe intended to lay down a different rule or adopt the technical rule of english law that the custom should be immemorial in origin as stated in blackstone's "commentaries," contrary to what was stated earlier by the privy council in mussamat subhani v. Nawab.
(18) Even assuming that lord radcliffe laid down such a rule, according to the decision of the full bench of this court in cr. R. C. No. 603 of 1954, i am only bound to follow the bench decisions of the madras high court pronounced piior to 5th july, 1954. Accordingly i follow the decisions of the madras high court in palaniandi tevan v. Puthirangonda nadan, (1897) i. L. R. 20 madras 389. Moreover, it has been held by the supreme court in the state of bihar v. Abdul majeed, (1954) s. C. J. 300 : a. I. R. 1954 s. C. 245. That after the passing of the constitution, the decisions of the privy council are not binding but are only of persuasive value. The full bench decision of this court has not taken a different view of the matter, and this court is therefore free to choose and accept the view in mussamat subhani v. Nawab in preference to the view of lord radcliffe in lakshmidhar misra v. Rangalal as the earlier decision of the privy council takes into account the conditions prevailing in this country.
(19) Reference was made to the decisions of the madras high court for the proposition that mere registry of land in a village as a particular kind of poramboke creates no vested right in the villagers to hold it as against government - vide venkataswami v. Chenga reddi, a. I. R. 1930 mad. 621. Rudrappa v. Dasan, a. I. R. 1933 mad. 610. And ramaswami aiyar v. The secretary of slate for india, (1930) 59 m. L. J. 844. I agree with those decisions and hold that the mere registry of the suit land as mandabayalu does not confer any legal right. But in my view, the entry strongly supports the case of the respondents 1 to 5 that the suit land was being used as mandabayalu and is destructive of the appellant's case that it was not at all used as mandabayalu. It was next contended that it is not open for a civil court to question the validity of the assignment of this poramboke and reliance was placed on desikachariar v. Secretary of state for india, (1913) 25 m. L. J. 38. And rudrappa v. Dasan, a. I. R. 1933 mad. 610. I do not agree with this contention. If respondents 1 to 5 have a customary right in and easement over the land, and if the land is assigned in violation of the right, they are entitled to institute a suit in the civil court for vindication of their legal rights. No authority has been cited that even if civil or customary rights are affected or infringed, the civil court has no jurisdiction to question the acts of the government.
(20) The last contention that requires to be noticed in this connection is that the acts of enjoyment alleged in respect of this mandabayalu poramboke are not such as will confer customary rights on the villagers and reference was made to the decision in collector of godavary district v. Pedda rengayya, (1903) 4 madras law times 440 that decision has really no application to the facts of this case. What was held in that case was that according to the common law of the country, the control of grama kantam or grama natham, vests in the revenue authorities and they are at liberty to grant portions of it at their discretion, to persons who apply for it. The observations at pages 440 and 441 were relied on and they are as follows : -
"according to the common law of the country the control of "grama natham" vests in the revenue authorities and they are at liberty to grant portions of it at their discretion to persons who apply for it for building purposes. Until it is appropriated in this way to the use of some definite person it is usual for the villagers to make use of it in any way that suits them best. They throw rubbish on it, graze their cattle on it, use it as a latrine and the like and they are rarely interfered with. But it is always understood that this use is permissive on the part of government and that government has the right at any time to appropriate it for any special public purpose or grant it to an individual for building purposes. Such being the ordinary incidents of " grama natham " it is necessary that a plaintiff who seeks to limit the ordinary rights of government in regard to any part of it should establish the limitation by clear proof. We do not think that there is any such proof in the present case. Some elderly witnesses, no doubt, state that ever since their boyhood the place has been used as a place for the village cattle to stand on when going to and from the pastures and also that it is used in connection with the festival of the goddess whose temple is adjacent. But there is probably hardly a village site in this presidency of which so much could not be said and no one acquainted with the common law of the country would hold that such user is by itself sufficient to deprhe the revenue authorities of their ordinary rights of control over and disposal of the village site land. There is no evidence that the land in question was ever dedicated or set apart as a cattle stand (mandai) or for any purpose connected with the temple though there is evidence that several previous applications for portions of it have been refused by the revenue authorities on various grounds of inconvenience to the villagers. "
(21) This decision has been followed in the taluk board, dindigul v. Venkalaiama aiyar, (1923) 45 m. L. J. 333. It was held in that case that the enjoyment was of too fugitive and patently permissive a kind to support a right in the villagers either by custom or by prescription. It is therefore a question of fact as to whether the acts alleged and proved in each case are sufficient to establish a customary light. As already stated, the courts below have concurrently found that the customary right is made out and i see no reason to interfere with that finding. Even assuming that all the customary rights alleged in the plaint are not sufficiently made out, there can be no doubt that the suit land was at least being used for mandabayalu as is evidenced by the documents. If the villagers have at least the customary mandabayalu right, that is sufficient to hold that the land cannot be assigned so as to affect that right. It is not the case of the appellants that the right of mandabayalu is sought to be restricted only to a reasonable portion of the land. The government has also not offered to set apart an equal and convenient extent for mandabayalu purposes in any other part of the village. So the decision in ramaswami aiyar v. Secretary of state for india, (1913) 25 m. L. J. 38. Has no application to the facts of this case. There is no force in the contention that as the claim of respondents i to 5 is based on dedication, lost grant and customrary right, it cannot be sustained on the basis of customary right and easement only. It is clear from the decision of the privy council in lakshmidhar mist a v. Rangalal, (1950) 1 m. L. J. 100 : l. R. 76 i. A. 271 : i. L. R. 29 pat. 1 (p. C.). That even though the claim based on dedication and lost grant was negatived, relief was granted on the basis of the customary right. The long enjoyment and user of the suit land for the several purposes mentioned in the plaint are sufficient to uphold the customary right and easement.
(22) The next question that arises is as to whether the state of madras followed the rules laid down in g. O. No. 1523 (revenue) dated 11th june, 1949. Both the courts held that those rules have not been followed and that the grant to the 1st defendant is invalid. I agree with that view. Instruction no. 4 in the g. O. Runs in the following terms : -
"poramboke lands not required for any communal purposes may be assigned subject to the following instructions : - (1) even when not required for communal purposes, they should be taken up for assignment only if there arc no other lands, available for assignment, (2) the permission of the government should be obtained before assigning tank bed lands or grazing ground porambokes. Note. - (1) grazing ground porambokes may be recommended for assignment if there will be at least one acre of pasture land available per head of cattle in the village even after assignment, (2) before recommending tank bed lands for assignment, collectors should invariably consult the appropriate technical officer and forward his opinion to the government."
(23) According to the g. O. It is only poramboke lands that are not required for any communal purposes that may be assigned by the government. As already held by me, accepting the findings of the courts below, the suit land is required for the communal purposes mentioned in the plaint. Even assuming that the lands are not required for communal purposes, no evidence has been placed by the appellants that there are no other lands available for assignment to the political sufferer. Evidence adduced on behalf of the respondents i to 5 clearly shows that there is no other land which can be used for the said communal purposes. In the report submitted by the tahsildar, dated 26th april, 1950, marked as exhibit 6 - 5, it was stated that s. No. 515 polimera donka poramboke situated in the east was usually being used by the villagers for cattle stand and grazing land on all occasions. The tahsildar, examined as d. W. 7, admitted that the contents of exhibit b - 5 relating to the existence of other porambokes for cattle to graze and stand were not verified by his personal inspection. He added that those statements were based on the statement made by the 1st defendant and the karnam on enquiry. I therefore do not attach any importance to the statements contained in exhibit b - 5. There is therefore no evidence on behalf of the appellants that there are any other convenient poramboke lands which might be set apart for the communal purposes mentioned in the plaint. The government has also not offered to set apart any porambokes for those purposes. In my opinion, the terms of the g. O. Are not complied with in as much as the government have not proved (a) that the suit land is not required for any communal purposes and (b) that there are no other lands available for assignment to the political sufferer. I agree with the conclusion arrived at by the court below on this point as well. In the result, the second appeals fail and arc dismissed with costs of respondents 1 to 5. Leave granted. Appeal dismissed - leave granted.