Madras High Court
Muhamad Husain Rowther And Ors. vs Muhamad Abubakar Rowther And Ors. on 1 March, 1909
Equivalent citations: (1910)20MLJ699
JUDGMENT
1. The finding of the Subordinate Judge upon the second issue sent down is, as we read it, a finding of a customary right in the plaintiffs to use the tank, with this limitation, that for the purpose of this use they had a right of access to the tank on the northern and eastern sides but no right of access on the western side. This being so, there is no customary right in the plaintiffs which has been infringed by the erection by the defendants of the fence on the western side.
2. We cannot accede to Mr. Govindaraghava Iyer's contention that the finding of a customary right to use involves a general right of access. There is no reason why a customary right should not be limited in the way, as we read the finding, the Subordinate Judge intended to limit it.
3. On the first issue the Judge finds that the property in the tank is in the Government and that there has been a dedication to the use of the public in general. It is not the plaintiff's case that they have any rights as members of the general public. They rely on their customary right only. In view of the finding on the second issue we must hold that the plaintiffs have failed to shew that any right of theirs has been infringed by the defendants Nos. 1 to 11 and that consequently their suit fails.
4. We must set aside the decrees of the lower Courts and dismiss the suit with costs throughout--one set.