JUDGMENT : R.N. Misra, J. - Plaintiffs sued for themselves and as representatives of their villagers for a declaration that the villagers had customary right of using the water of the tank in dispute for cattle as also domestic purposes; they had customary right of discharging the surplus rain water through the disputed land and for permanent injunction. Their suit was decreed by the trial Court and the said decree has been vacated and the suit has been dismissed by the Additional District Judge. The reversing decree is now assailed in second appeal at the instance of the plaintiffs. 2. Plaintiffs alleged that the disputed property described in Schedule-A was a tank and villagers had customary right of using the water both for cattle as also domestic purposes and they had a customary right of discharging the surplus rain water of the entire village through the disputed land. The defendants claimed the property under a lease from the ex-intermediary and started obstructing the user of the property by the villagers. Therefore, they instituted the suit on 3-5-1971. 3. Defendants disputed plaintiffs' claim that the disputed property was communal in character and maintained that they had obtained a lease of the same from the ex-intermediary as early as 5-8-1945. There was a proceeding under section 5(i) of the Estates Abolition Act which terminated in their favour on 17-5-1968. They further contended that the property was recorded as Gadia in the C.S Record-of-rights, but it had long been filled up and houses have been constructed thereupon and permanent valuable trees have also been planted. 4. The trial Court found that the lease dated 5-8-1945 (Ext. D) was a genuine one and not ante dated; the lease being prior to 1-1-1946, the Court had jurisdiction to entertain the suit; the disputed property was communal and the lease did not confer any right on the defendants. The trial Court upheld the plaintiffs' claim of customary right and accordingly declared the right and decreed the relief of permanent injunction. 5. The appellate Court came to hold that the disputed property was a ditch which was being occasionally used by the villagers. There was no customary right in respect of it. Defendants had filled up a portion of the ditch and had planted permanent trees and raised constructions. They had acquired a valid tenancy right under the lease and by abolition that was not affected. There was no customary right in respect of it. Defendants had filled up a portion of the ditch and had planted permanent trees and raised constructions. They had acquired a valid tenancy right under the lease and by abolition that was not affected. It further found that customary rights of the plaintiffs, if any, stood extinguished upon vesting of the estate under the Abolition Act. Accordingly it vacated the judgment and decree of the trial Court and dismissed the suit. 6. Mr. Mukherjee for the plaintiffs in support of this appeal has contended :- (i) The lease being prior to 1-1-1946 could not have been the subject-matter of a valid proceeding under section 5(i) of the Estates Abolition Act ; (ii) The proceeding under section 5(i) of the Estates Abolition Act was vitiated in the absence of notice to the lessor and in the absence of confirmation from the Board of Revenue, it was not open to the Collector under the Act to give a final verdict as to the validity of the lease ; (iii) The estate vested free from all encumbrances and the lease being an encumbrance stood extinguished upon vesting of the estate ; (iv) Communal rights are not encumbrances and even if the estate vested such right subsisted; and (v) The trial Court had recorded a clear finding about the existence of the customary right on appreciation of evidence, but the learned Appellate Judge reversed the factual position without dealing with the evidence. 7. The lease is admittedly prior to 1-1-1946. Special jurisdiction has been vested in the Collector under the Abolition Act to deal with validity of leases after 1-1-1946. The Collector would certainly have jurisdiction to enquire for the purpose of assuring jurisdiction regarding the date of the lease. If the lease would be prior to 1-1-1946, he would have no jurisdiction to deal with it. It is the common stand of parties in the present case that the lease was prior to 1-1-1946. The Collector also recorded a similar finding. In the circumstances, the proceeding under section 5(i) of the Abolition Act was without any jurisdiction and the finding of the Collector is not available to be relied upon. There is also force in the contention of Mr. The Collector also recorded a similar finding. In the circumstances, the proceeding under section 5(i) of the Abolition Act was without any jurisdiction and the finding of the Collector is not available to be relied upon. There is also force in the contention of Mr. Mukherjee that if the lease had been subsequent to 1.1.1946 and for some reason the Collector came to the conclusion that it was not to be set aside, the approval of the Board of Revenue would have been necessary. The lease has been found to be a valid one. Under the lease in respect of the property occupancy right had been created. The ex-intermediary was entitled to lease out the property and once tenancy rights had been created in favour of the defendants, that could not be wiped out as a consequence of vesting. Tenancy rights were not intended to be taken away by the Abolition Act and the position has been laid to rest by the decision of the Supreme Court in the case of Kumar Bimal Chandra Sinha (deceased) and after him his legal representatives and others v. State of Orissa and others 29(1963) C.L.T. 169(S.C.) : AIR 1962 S.C. 1912 . If communal rights were existing, the leasehold would have been subject to such communal rights. Reliance has been placed by Mr. Mukherjee on several decision of this Court being Shyama Charan Mohanty & others v. Upendra Mohanty & others 39 (1973) C.L.T. 1136, State of Orissa v. Rameswar Patabisi 42 (1976) C.L.T. 48 : 17 (1975) O.J.C. 507 and Banchhanidhi Mohapatra & others v. Basudev Das 42 (1976) C.L.T. 488, for the submission that communal rights are not encumbrances and would survive vesting. Mr. Sinha on the other hand relies upon a recent decision of the Supreme Court in the case of State of West Bengal v. Sudhir Chandra Ghose and others AIR 1976 S.C. 2599 , for his stand that communal rights are encumbrances and would lapse with vesting in view of the provision contained in the Estates Abolition Act that the vesting would be free of encumbrances. Mr. Mr. Mukherjee places reliance on an earlier decision of the Supreme Court in the case of Chigurupati Venkata Subbayya and others v. Paladugu Anjayya and others AIR 1972 S.C. 1421 , where it has been held :- "It is true that the suit lands in view of section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. What has been abrogated is the rights and interests created in or over the estate before the notified date by the principal or other landholder. The rights of the community over the suit lands were not created by the principal or any other land-holder. Hence those rights cannot be said to have been abrogated by clause (c) of section 3 of the Estates Abolition Act." This decision was by a Bench of three learned Judges while the latter decision relied upon by Mr. Sinha has been rendered by a Bench of two learned Judges which does not refer to the ratio in the earlier case. In these circumstances the earlier decision would have binding precedent value. 8. The real question for consideration is a factual one namely whether the customary right had been established There is force in the submission of Mr. Mukherjee that the lower appellate Court did not deal with the evidence. He, therefore, supplied copies of the depositions of witnesses for both the sides and I have read the evidence. Law is well settled as to how a customary right has to be pleaded. In this case, customary right both in regard to using of water as also discharging the surplus rain water was not properly pleaded. The evidence in regard to the ingredients of custom is not at all clear. The witnesses are mostly young people not competent to depose about the ancient character of the right which would fructify into custom. I do not think, on the evidence available on record, custom can be said to have been proved. The evidence in regard to the ingredients of custom is not at all clear. The witnesses are mostly young people not competent to depose about the ancient character of the right which would fructify into custom. I do not think, on the evidence available on record, custom can be said to have been proved. The property stood recorded as a Gadia in the C.S. record and a Commissioner had been deputed at the appellate stage to inspect the property and he has given a clear report that a part of the ditch had been long filled up and an orchard has been raised and over the other portion, constructions have come up. Even if there was communal right at one stage the property has undergone change into such a form that it can no more be a subject-matter of communal right. If such aright was really existing, the transformation should have been resisted in time. 9. Taking a sum total view of the matter, I am inclined to agree with the conclusion of the lower appellate Court that the plaintiffs cannot succeed. The appeal, therefore, fails and is dismissed. In the peculiar facts of the case, I call upon both parties to bear their own costs throughout. Final Result : Dismissed