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Madras High Court
Shunmugam Pillai And Ors. vs Venkateswara Aiyar on 1 August, 1892
Equivalent citations: (1892) 2 MLJ 290


ORDER

1. The right asserted by the defendants and found by the District Munsif was not an easement, but a customary right. The question for decision was whether (as found by the District Munsif) the right to the property vesting in the choultry was burdened with the right of passage claimed by the defendants.

2. Though the Subordinate Judge observes that the ovidence as to the customary right was hardly worth anything he has not discussed that evidence, nor referred to the admissions relied on by the District Munsif in paras. 12 and 13 of his judgment.

3. The Vakil was not examined as to the precise duration of the user and we also observe that the whole of the evidence which the parties had to adduce was not heard by the District Munsif in consequence of his refusal to adjourn the case.

4. The contention of the respondent that the right claimed by the defendants is a more profit a prendre cannot be supported. See Race v. Ward, 4 Ellis & B1. 702.

5. If the customary right as asserted by the defendants is established by the user of the well and the passage claimed by them from a period prior to the existence of the Chattram their contention must prevail.

6. We will ask for a farther finding on the 1st issue and will allow further evidence to be taken on either side.


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