Judgment :- 1. This is an appeal by the defendant against the decrees and judgments of both the subordinate courts issuing a mandatory injunction against him to restore a track to its former state and also giving certain consequential directions. 2. Originally, there were two points in controversy between the parties namely, the right of the plaintiff to get a decree for damages in respect of the usufruct of a mango tree appropriated by the defendant and also regarding the obtaining of a mandatory injunction against the defendant. 3. So far as the claim regarding damages for the usufruct of the mango tree is concerned, the trial court awarded a decree in favour of the plaintiff in the sum of Rs. 20 and though it was a subject-matter also in the appeal against the decree, the defendant did not press his case regarding that portion of the decree. Therefore, the only point in controversy now in the second appeal is as regards the mandatory injunction granted as against the appellant by both the subordinate courts. 4. There is a plan, Ext. C1, drawn by the commissioner which gives an idea of the properties owned by the plaintiff and defendant and also the pathway over which the plaintiff claims to have a right of way for taking carts. In the tarwad partition in 1937 evidenced by Ex. A-2, the plaintiff's tavazhi obtained Survey Nos. 139/2,137 B/6, the northern portion of Sy. No. 158 C/3,158 C/4 and the plot marked'Xin the plan. The defendant purchased Sy. Nos. 158 C/4 and the northern portion of S. No. 153 C/3 from the plaintiff's tavazhi in 1945 under Ex. Bl. 5. According to the plaintiff, the green-marked portion C D shown in the plan, Ex. C 1, as running from south to north, is a-cart track, which existed from ancient times for the people living in Kinasseri Thara to go to their village from the Palghat-Kollengode road on the south. The plaintiff himself is a resident of Kinasseri Thara. Bl. 5. According to the plaintiff, the green-marked portion C D shown in the plan, Ex. C 1, as running from south to north, is a-cart track, which existed from ancient times for the people living in Kinasseri Thara to go to their village from the Palghat-Kollengode road on the south. The plaintiff himself is a resident of Kinasseri Thara. It is also the case of the plaintiff that the defendant has obstructed this cart track at the point marked A in the commissioner's plan, in January 1954, as a result of which, no cart could be taken now northwards beyond point A. In consequence, the plaintiff and the members of his tarwad as well as the other residents of Kinasseri Thara, who have been using the said cart track for over 50 years, have been prevented from exercising their legitimate right of taking carts. The defendant has absolutely no right or title in the plot of land shown as C D in the plan, Ex. Cl, over which the cart track exist. The obstruction caused by the defendant is unlawful and illegal and as such, the plaintiff prayed for the issue of a mandatory injunction directing the defendant to remove the obstruction and restore the pathway to its old state. 6. The defendant contested this claim of the plaintiff on the ground that there was no cart track like C D as now shown in Ex. C1. Before he got an assignment of some properties in 1945 under Ex. B1, there was only a pathway on the eastern side of his property. There was also no pathway beyond the point marked A up to the point marked 19 by the commissioner on the line C D. He also alleged that at no time did anybody use any pathway over A-19 route and that people, after coming to point A from the main road, used to turn east and then pass along the Varambas. He was prepared to admit the existence of a small pathway from the point C till the point A. But it was not a cart track. He also denied having obstructed the cart track at any time and further contended that the plaintiff has no rights whatsoever. 7. He was prepared to admit the existence of a small pathway from the point C till the point A. But it was not a cart track. He also denied having obstructed the cart track at any time and further contended that the plaintiff has no rights whatsoever. 7. Both the courts, on a consideration of the evidence adduced in this case, came to the conclusion that the plaintiff has established his case that there was a cart track C D as alleged by him and that he has a customary right to take carts along that pathway to his house. Regarding the existence of the cart track, C D and its user as a cart track by the members of the plaintiff's tavazhi and also by the other residents of Kinasseri, both the courts have accepted the evidence adduced on behalf of the plaintiff. 8. Mr. Balakrishna Eradi, learned counsel for the defendant-appellant, raised two main contentions, namely: (a) The plaintiff having claimed the right to use C D as a cart track by virtue of a customary right as a resident of Kinasseri, the suit should have been instituted as a representative action under Order I R.8 C. P. C. and that he has no right to file the suit in his individual capacity alone; and (b) The question whether the plaintiff has established his customary right is a mixed question of law and fact, and the evidence adduced by the plaintiff, even if accepted, will not result in upholding the claim of the plaintiff to a customary right. The ingredients of a customary right have been laid down by several decisions, namely, that it must be ancient, continuous, peaceable, reasonable, and certain. None of these requirements have been satisfied in this case and therefore, the conclusions arrived at by the lower court, upholding the customary right set up by the plaintiff is contrary to law. 9. Regarding the first contention of Mr: Balakrishna Eradi that the suit should have been framed as a representative action, it is pointed out by Mr. V. P. Gopalan Nambiar, learned counsel for the plaintiff, that no such objection was taken either in the written statement or during the trial, or in the lower appellate court. 10. Assuming that such an action can be brought only in a representative capacity, Mr. V. P. Gopalan Nambiar, learned counsel for the plaintiff, that no such objection was taken either in the written statement or during the trial, or in the lower appellate court. 10. Assuming that such an action can be brought only in a representative capacity, Mr. Balakrishna Eradi has not been able to cite any authority to the effect that a decree passed in circumstances like the present is illegal. It was open to the defendant to have raised this objection at the earlier stage, so that, if the objection was sound in law, the plaintiff could have immediately rectified the same. Nor has the appellant been able to satisfy me that there has been any prejudice caused to him by the action being allowed to be fought out by the plaintiff alone. I may also, in this connection, refer to the decision of Wort, J., reported in Ramghulam v. Ramkhelawan (A.I.R.1937 Patna 481). The learned judge observes at page 482 as follows: "Order 1, R.8, C. P. C. as has been pointed out by a number of decisions, is an enabling section which entitles one party to represent many who have a common cause of action; but it does not force one to represent many if his action is maintainable without the joinder of the other persons." Therefore, the first contention of Mr. Balakrishna Eradi is negatived. 11. The second contention of Mr. Balakrishna Eradi is that before a party claims to establish a right as a customary right, he must satisfy the court that the custom relied upon by him, namely, the user of the carts in this pathway is ancient, continuous, peaceable, reasonable and certain. The evidence in this case adduced by the plaintiff & accepted by the two courts does not establish these essential ingredients of a customary right. Both the subordinate courts have accepted the evidence adduced on behalf of the plaintiff and held that this cart track CD is a village cart track used by the people of Kinasseri Thara inclusive of the plaintiff for the last more than 30 years. 12. The finding so recorded against the appellant concurrently by both the courts is binding on me sitting in second appeal 13. But Mr. 12. The finding so recorded against the appellant concurrently by both the courts is binding on me sitting in second appeal 13. But Mr. Balakrishna Eradi contended that a reading of the evidence accepted by the courts cannot result in a finding that CD has been used as a cart track for more than 30 years. As this contention is really to the effect that there is no evidence on record to warrant the findings arrived at by the lower courts, I have permitted the counsel on both sides to take me through the evidence bearing on this point. After going through the evidence, I am satisfied that the criticism levelled against the finding by Mr. Balakrishna Eradi is not justified. There is evidence to show that the plaintiff's family and also other residents of Kinasseri have been using and are using this as a cart track. 14. In this connection, I may state that as laid down in Palaniandi Thevan v. Puthirangoda Nadan (I. L. R.20 Mad. 389) and Baisnath Bavik v. S.K. Nasiruddin (A.I.R.1945 Patna 118), no fixed period of enjoyment is necessary to establish a customary right. Further, it is also laid down in Paddayya v. Krishnamurthi (A.I.R.1927 Mad. 653) that where a customary right is set up and user for 30 years is proved, the presumption would be prima facie that it was as of right and it is for the party who wants to show that it was only permissive to prove it. 15. In this case, it must be borne in mind that the defendant does not claim any title to or possession of any portion of the property marked as CD in the commissioner's plan, Ex. C1. Nor is it his case that the use of the plaintiff is only by the permission of the owners of the land over which the cart track CD runs. It is seen from the commissioner's report that the Track CD is a very old one and that it runs over lands of 5 persons belonging to 4 jenmis; the jenmis being the Railway, Kuthiravattam Estate, Poovakode Devaswom and the plaintiff herein. It takes off from the Palghat-Kollangode road at the point C and the Railway also have left a gap at the point C for a width of 30 links. 16. It takes off from the Palghat-Kollangode road at the point C and the Railway also have left a gap at the point C for a width of 30 links. 16. The defendant was prepared to at least admit the existence of a foot path from the point C to the point A. His case was that he widened the route from the point C to D after his purchase in 1945 so as to enable his car to be taken to his house. The learned judge has rightly rejected this evidence of the defendant because he could not have widened a track of 3 feet to a track of 12 feet unless he has taken other people's property or has set apart a portion of his own property for the required width. On both these aspects, the defendant placed no material whatsoever. But the strongest circumstance against the defendant's case is the fact that as early as 1930, when the Palghat-Pollachi Railway was constructed, the Railway authorities have allowed a passage to the extent of 30 links, at the point C. It is also seen that though the defendant denied even the existence of a pathway from point A to the point 19 marked in Ex. C1, he has admitted before the learned District Judge as seen from Para.10 of the judgment, about the existence of a pathway from C to A and also from the point 19 to the point D. But on a consideration of the evidence, both the courts have come to the conclusion that there was also a continuation track from the point marked A to the point marked 19. In fact, there is also the admission of Pw. 2 that the old pathway extended up to the south of Survey No. 158 C/5 which will be the point A, in Ext. Cl. He further admits that there is a pathway extending from there to the front of the house of the plaintiff towards north and he added that the said pathway also is an old pathway and that it has been in the same state as it was previously. These statements clearly justify the finding of the courts that there was also a pathway from the point A extending up to the point D. This admission of Dw. These statements clearly justify the finding of the courts that there was also a pathway from the point A extending up to the point D. This admission of Dw. 2, a witness of the defendant, will show that the case of the defendant that there was no pathway from the point A to the point marked 19 in Ex Cl is not true. Therefore, the, evidence clearly shows that there was a pathway right from the point C to the point D. 17. The question then is whether there was only a pathway or a cart track also. There is the fact that on the point C, the Railway have allowed a width of 30 links to enable carts to pass. Even on the case of the defendant, there is a cart track at any rate, up to point A. His case of widening that portion through his own efforts has been found to be false. There is also evidence that the fence on the eastern side of CD and the ridge on the western side of C D are in the same position as they have been from 1908. The fence and the ridge would not have continued to be in the same position, leaving a sufficient portion for the passage of carts in between, for such a long time, unless C D was intended to be used as a cart track. There is evidence of Pw.1 to the effect that carts used to be taken through C D for over 38 years and he knows that fact personally. He has also stated that on the north of the plaintiff's house, there are houses and the residents of those places use this as a cart track for the past 38 years. The criticism of Mr. Balakrishna Eradi is that this evidence will not show that there has been continuous user of the track C D as a cart track till the date of suit. I cannot agree. The answer is "They use this as a cart track for the last 38 years". No doubt, in cross-examination, the witness says that till partition, the plaintiff had a cart and that there was no necessity to have a cart after they ceased to have cultivation. But he also states that fire-wood is taken in the cart after their cart was sold. No doubt, in cross-examination, the witness says that till partition, the plaintiff had a cart and that there was no necessity to have a cart after they ceased to have cultivation. But he also states that fire-wood is taken in the cart after their cart was sold. No doubt, Pw.1 admits that they do not own a cart, but he does state that they were taking fire-wood in carts, after their cart was sold. 18. There is also the evidence of Pw. 2, who is a very old man of 68 years and a resident of Kinassery Amson, to the effect teat the fence on the western side of the cart track from the southern and to the northern end has been like that for a number of years. He has also stated that carts go along the pathway and that he knows the cart-track for the past 50 years and that the plaintiff's tarwad people used to take agricultural produce in carts over this track. He also says that the people living in the house north of the plaintiff's house use, also this track as a cart track for taking agricultural produce etc. 19. No doubt, in cross-examination, he says that the plaintiffs do not have a cart for some years. But there is no cross-examination regarding his statement, that the residents of Kinsasseri use this as a cart track. Then there is the evidence of Pw. 3 another resident of Kinasseri Amsom. He has also spoken to the carts coming into the suit pathway from the Kollengode-Palghat Road and he has got personal knowledge of it for at least 25 years. He has also stated that the plaintiff's tarwad used to take agricultural produce in carts through the pathway. He has further stated that there are about 20 houses in addition, to his wife's house in Kinasseri and they use the disputed pathway as a cart track. Most of the cross-examination is about the plaintiff owning or not owning a cart. There is no effective cross-examination about the user by the other residents of Kinasseri of this track as a cart track. 20. Dw. 2 himself has admitted that if the plaintiffs have to take manure, paddy or straw in carts, then the disputed pathway should be used. There is no effective cross-examination about the user by the other residents of Kinasseri of this track as a cart track. 20. Dw. 2 himself has admitted that if the plaintiffs have to take manure, paddy or straw in carts, then the disputed pathway should be used. He has also admitted that from 1908 to 1952 the fence of the plaintiff's house has been in the same position. He has also admitted that the Varamba between the plaintiff's house and Survey No. 137B/6 is in the same state for those years and the western varamba of Survey No. 137B/5 and 4 are also in the same state. He has also admitted that the western varamba of plot X and the plots to the south of it is in the same state. This establishes, as already mentioned, that the fence on the side of C D and the ridge on the eastern side of DC allowing the width shown in the plan, have been in the same position at any rate from 1908 to 1952, that is, over a period of nearly 44 years even according to the admission of Dw. 2 himself. 21. In view of the evidence extracted above, there is ample justification for both the subordinate courts finding that C D is a village cart track used by the people of Kinasseri Thara inclusive of the plaintiff for the last more than 30 years. The necessary ingredients for recognising a customary right have been established by the plaintiff in this case and the decrees and judgments of the subordinate courts do not call for any interference. Second Appeal fails and is dismissed with costs. No leave. Dismissed.