JUDGMENT : Rajiv Sharma, J. 1. This Regular Second Appeal has been instituted against Judgment dated 1.12.2004 rendered by the learned District Judge, Kinnaur Division at Rampur Bushahr, HP in Civil Appeal No. 15 of 2004. 2. "Key facts" necessary for the adjudication of the present appeal are that the respondents-plaintiffs (hereinafter referred to as 'plaintiffs' for convenience sake) filed a suit for declaration against the appellants-defendants (hereinafter referred to as 'defendants' for convenience sake). According to the plaintiffs, since time immemorial, they have been exercising their customary rights of collection of Chilgoza fruits, grazing cattle, collection of dead leaves and fuel wood, cutting of leaves for fodder and timber for houses and allied matters exclusively, peacefully, openly, continuously, without any interruption and to the exclusion of the defendants and all others over land comprised in Khata Khatauni No. 40/55 Min. Khasra Nos. 1/2/2 and 2 area measuring 2-74-50 hectares, Khasra No. 1 measuring 0-21-01 hectares and Khasra No. 1/1/2 area measuring 0-11-83 hectares situate in Up Mohal Limoden of Mohal Chansu, Tehsil Sangla, District Kinnaur HP. They have been enjoying pasturage and other Bartandari rights exclusively over the suit land to the knowledge and exclusion of the defendants. Initially, the land was un-measured and it was in the Limoden Up Mohal of Mohal Chansu but during the recent settlement, it was measured and was denoted by the present Khasra numbers. In the year 1990, after the completion of settlement operation, the defendants moved an application before the Settlement Collector for correction of entries in the revenue records pertaining to the suit land upon which the Settlement Collector ordered the Naib Tehsildar (Assistant Collector 2nd Grade) to inquire into the matter and on the basis of that inquiry, ordered to delete the suit land from Up Mohal Limoden of Mohal Chansu and added the same to Mohal Shong. While doing so, the Settlement Collector exercised the jurisdiction not vested in him and gravely erred in ordering the deletion of the suit land from Up Mohal Limoden to Mohal Chansu. It is further stated that since time immemorial, the Shong Khud (Shong stream) has been the natural boundary between Shong and Chansu Up Mohals and plaintiffs have been enjoying all of their rights in the suit land. It is further stated that since time immemorial, the Shong Khud (Shong stream) has been the natural boundary between Shong and Chansu Up Mohals and plaintiffs have been enjoying all of their rights in the suit land. Defendants started threatening to interfere in the peaceful and exclusive enjoyment of the rights of the plaintiffs over the suit land and in case the defendants are not restrained by way of permanent prohibitory injunction from doing so, plaintiffs will suffer irreparable loss and injury. The suit was filed by the plaintiffs in representative capacity. Plaintiffs have prayed for declaration that they have exclusive customary rights over the suit land and Order of the Settlement Collector dated 7.12.1991 (Ext. PW-1/A) as well as mutation order No. 15 dated 23.3.1992 (Ext. PW-1/B) vide which the said order has been given effect, are illegal, inoperative and void having no effect on the above mentioned customary and Bartandari rights over the suit land. Plaintiffs also prayed for restraining the defendants from interfering in the rights of the plaintiffs over the suit land, in any manner. 3. Suit was contested by the defendants. On merits, the defendants have denied that the plaintiffs had been exercising customary or Bartandari rights over the suit land. Rather, they claimed that the defendants had been exercising these rights over the suit land openly, continuously and without any interruption since time immemorial to the exclusion of the plaintiffs. They further alleged that Limoden area was part and parcel of the Mohal Shong and villagers of village Shong were in effective control of the suit land and it never remained in Mohal Chansu. As per the defendants, the settlement operation in the area was done at their back and so the defendants are not bound by the wrong revenue entries vide which new Up Mohal Limoden was created during the settlement of village Chansu. They have further alleged that the Settlement Collector has rightly ordered the deletion of the suit land from Up Mohal Limoden of Mohal Chansu to Mohal Shong. The Settlement Collector had made order on the basis of inquiry made by Assistant Collector 2nd Grade, who had recorded the statements of witnesses. Rather the plaintiffs had conceded the claim of the defendants. They have supported the order dated 7.12.1991 of the Settlement Collector as well as mutation order dated 23.3.1992. The Settlement Collector had made order on the basis of inquiry made by Assistant Collector 2nd Grade, who had recorded the statements of witnesses. Rather the plaintiffs had conceded the claim of the defendants. They have supported the order dated 7.12.1991 of the Settlement Collector as well as mutation order dated 23.3.1992. It is also alleged that the distance between Shong Khud (Shong Stream) and Chansu village was more than 9 kilometres and the distance between the Shong Khud (Shong Stream) and Shong village was not even fifty feet. The distance between Shong Village and Ruea Nallah was not more than 2 kms. Distance between Ruea Nallah and Chansu village was more than 7 kilometres. Defendants have been exercising customary rights of collection of Chilgoza, grass, collection of dead leaves, fuel wood, cutting leaves for fodder and timber for houses, from the suit land. 4. Issues were framed by the learned trial Court on 22.10.1993. Suit was decreed by the learned Civil Judge (Senior Division) on 23.12.2003. Defendants filed Appeal before the District Judge, Kinnaur Division at Rampur Bushahr, which was dismissed on 1.12.2004. Hence, this Regular Second Appeal. 5. The Regular Second Appeal was admitted on 9.8.2005 on the following substantial question of law: “Whether the finding given by the courts below suffers from vice of perversity as the same have been given in ignorance of Sections 13 and 48 of the Indian Evidence Act. Whether the courts below have mis-read the Forest Settlement Manual for the year 1921 and the Settlement Collector’s Order i.e. Exb. PW4/A, PW4/B and Exb.PW1/A and P-1 respectively and have therefore wrongly forfeited the rights of the present appellants/defendants.” 6. Mr. B.C. Negi, learned Senior Advocate, on the basis of substantial questions of law framed, has vehemently argued that the finding given by the learned Courts below were in ignorance of Sections 13 and 48 of the Indian Evidence Act. He then contended that the Courts below have misread the Forest Settlement Manual for the year 1921 and Order of Settlement Collector, Ext PW-4/A, Ext PW-4/B, Ext PW-1/A and Ext P-1. 7. Mr. G.D. Verma, learned Senior Advocate has supported the judgments and decrees passed by the Courts below. 8. I have heard the learned counsel for the parties and also gone through the judgments and decrees and record carefully. 9. Bhagat Ram (PW-1) testified that the suit land was known as Mauauma Limoden. 7. Mr. G.D. Verma, learned Senior Advocate has supported the judgments and decrees passed by the Courts below. 8. I have heard the learned counsel for the parties and also gone through the judgments and decrees and record carefully. 9. Bhagat Ram (PW-1) testified that the suit land was known as Mauauma Limoden. The area started from Shong Khud (stream) and went towards Sangla upto Kalang Khud (stream). The villagers of Chansu used to graze their cattle, take grass and leaves etc. from this land. They also collected Chilgoza from the said land. They had their temporary residences on the land. No other persons except the villagers of Chansu had rights over the suit land. Villagers of Shong had their rights below Shong Khud (stream) towards Ruea. Settlement took place about 5-6 years back and in the settlement, the area in question was measured and it was formed as Limoden Up Mohal of Mohal Chansu. Thereafter, a dispute started between the parties. Three years after settlement, the villagers of Shong filed a case before Settlement Collector. They were also called and at that time it was told that area in question will remain in Chansu Mohal. However, the Settlement Collector did not call them at Shimla but he sent papers from Shimla to Sangla Tehsil and Tehsildar Sangla told them that Up Mohal Limoden had been deleted from Mohal Chansu and added to Mohal Shong. Before doing so, the Settlement Collector never called them to Shimla nor any opportunity was given to them to lead their evidence. Ext. PW- 1/A is the copy of order of Settlement Collector, Ext. PW-1/B is the copy of mutation, Ext. PW-1/C is the copy of Misal Hakiyat and Ext. PW-1/D is the copy of Aks Tatima. According to him, between villages Chansu and Shong, there was a Khud (stream) known as Shong Khud (streatm) and this Khud (stream) was the boundary between the two villages. He denied in his cross-examination that the defendants were ejoying rights over the area known as Limoden. He has denied that Ruea Nallah was the natural boundary. He denied that defendants enjoyed their customary rights. 10. Vidya Sain (PW-2) deposed that he was conversant with the facts of the case. Earlier he was serving in revenue department and retired as Kanungo. He remained Field Kanungo and Office Kanungo from 1986 to 1992. He has denied that Ruea Nallah was the natural boundary. He denied that defendants enjoyed their customary rights. 10. Vidya Sain (PW-2) deposed that he was conversant with the facts of the case. Earlier he was serving in revenue department and retired as Kanungo. He remained Field Kanungo and Office Kanungo from 1986 to 1992. Area from village Kulba to Village Chitkul fell in his jurisdiction and he used to visit the villages Shong and Chansu in connection with official work. He further deposed that from the side of village Shong towards Chansu, there was a Nallah which was known as Shong Nallah. As per revenue record, upto Shong Nallah, the villagers of Chansu had their rights. He had also personal knowledge about this fact. The area from Shong Nallah upto village Chansu was known as Limoden where villagers of village Chansu had their residences and Dogris (thatches). Villagers of village Chansu had their rights to graze cattle, take leaves, fodder, fuel wood and Chilgoza from the land. Villagers of village Shong had no right in the suit land. 11. Hukam Lal (PW-3) deposed that he was a resident of village Sangla. He was 80 years old. He deposed that he knew the parties. He used to live in village Chansu. He used to graze cattle and for some time, he also worked on the forest road. There was a bridge and it used to be repaired by the villagers of both the villages, whenever it was broken. There were Chilgoza trees in the Ruea area, fruits of which were extracted by the villagers of Chansu. Villagers of Shong had no right over the land. 12. Satish Kumar (PW-4) was the Range Officer. He has proved Ext. PW-4/A and Ext. PW-4/B. According to him, compartment No. 152 fell in village Chansu. 13. Ghanshayam Dass (PW-5) deposed that he remained posted as Block Officer Forest in Sangla from January 1970 to August, 1974. The area from village Ruea upto village Chitkul fell in his jurisdiction. Villages Shong and Chansu also fell in this area and he used to visit this area. From Karchham to Sangla, there was a forest road which went via Chansu. Later on half of this road came under Public Works Department. The area from village Ruea upto village Chitkul fell in his jurisdiction. Villages Shong and Chansu also fell in this area and he used to visit this area. From Karchham to Sangla, there was a forest road which went via Chansu. Later on half of this road came under Public Works Department. The natural boundary between villages Shong and Chansu was Shong Khud (stream) Upto Shong Khud (stream) towards Chansu, villagers of Chansu were enjoying their rights while the villagers of village Shong never exercised their rights in this area. 14. PW-6 (Laxman Dass) deposed that he knew the parties and had seen the land in dispute. Earlier he kept sheep and goats. He was having 400-500 sheep/goats. He used to graze cattle in Dehradun and then in Simour District in Himachal Pradesh. He did this profession for about 20-22 years. He deposed that he used to visit Chansu. Towards Chansu from Shong Khud (stream) only the villagers of Chansu had their rights. He had paid Rs. 30-35 to the villages in lieu of grazing his cattle. 15. Balwant Singh (DW-1) is one of the defendants. He testified that the boundary of village Shong was Ruea Nallah. Land in dispute fell between Shong Khud and Ruea Nallah. Prior to settlement, the land was unmeasured. In this land, there were trees of Chilgoza, walnut etc. and upper area was used for grazing cattle. Villagers of village Shong had been taking Chilgoza, grass, leaves and wood etc. from this land and they were enjoying these rights. From Ruea Nallah to Shong Khud, the villagers of Chansu had no right. During settlement, the villagers of village Chansu in connivance with the settlement officials got created a new Up Mohal Limoden. The area from Ruea Nallah upto Shong Khud was shown wrongly in Up Mohal Limoden in village Chansu. He made complaint to Settlement Collector. Settlement Collector thereafter visited the spot in the presence of the villagers. At that time, villagers of village Chansu admitted that Ruea Nallah was the boundary of village Shong. Settlement Collector made correction. According to them, villagers of Chansu never interfered in their rights to take Chilgoza. Sometimes, other persons namely Jamuna Dass, Sunder Dass and Laxman Dass used to graze their cattle in this area in lieu of which they used to pay Devkuru i.e. goat as compensation to the villagers of village Shong. Settlement Collector made correction. According to them, villagers of Chansu never interfered in their rights to take Chilgoza. Sometimes, other persons namely Jamuna Dass, Sunder Dass and Laxman Dass used to graze their cattle in this area in lieu of which they used to pay Devkuru i.e. goat as compensation to the villagers of village Shong. Earlier whenever the Raja of Rampur Bushahr and other dignitaries used to come on tour, villagers of village Shong used to receive them at place Atangara. The villagers also used to see off the dignitaries at the same place in Ruea area which was known as Atangara. Ruea Nallah was the natural boundary between the villages of Chansu and Shong since time immemorial. He admitted in his crossexamination that he did not know about the settlement operation. He also admitted that towards Chansu from Shong Khud (stream) no land was owned by the villagers of village Shong. 16. Ganga Lal (DW-2) testified that he had seen the suit land which was known as Ruea. He had been visiting the place. He deposed that once Kanwar Jagjit Singh had come from Rampur and at that time, he had come to village Atangara to receive him because Atangara was the boundary. At place Ruea, the villagers of Shong used to graze their cattle. 17. Bhagat Ram (DW-3) has corroborated the statement of Ganga Lal (DW-2). In his cross-examination, he admitted that he did not know the area of Ruea. He has feigned his ignorance about the fact that the Shong Khud (stream) was the natural boundary between villages Shong and Chansu. 18. Ram Chand (DW-4) testified that he has seen the suit land. It was known as Ruea. He has never seen the villagers of Chansu grazing cattle, sheep or goat in the area. In his crossexamination, he has admitted that he did not know exact area of Ruea or from where it started. 19. Jamna Dass (DW-5) deposed that natural boundary between Chansu and Shong was Ruea. He further deposed that he grazed sheep and goats on this land in the year 1981-82. At that time, when he grazed the sheep and goats, the villages of village Chansu never objected to it. In his cross-examination, he stated that after 1981 and 1982, he never visited the suit land. He further deposed that he grazed sheep and goats on this land in the year 1981-82. At that time, when he grazed the sheep and goats, the villages of village Chansu never objected to it. In his cross-examination, he stated that after 1981 and 1982, he never visited the suit land. He feigned ignorance about the fact that Shong Khud (stream) was the natural boundary between both the villages. He also feigned ignorance about the rights of both the parties in the suit land. 20. Vidya Singh (DW-6) stated that his in-laws were in village Shong and about 10 years back he had gone to the house of his in-laws for the purpose of cutting Chilgoza. He and other villagers had cut Chilgoza cones from the suit land which was known as Ruea. Only the villagers of village Shong had rights over this land. 21. Anant Ram (DW-7) deposed that he had seen the suit land. Their land was situate between Shong Khud and Ruea Nallah. Ruea Nallah was at a distance of about 2 kms from village Shong towars Chansu whereas distance of village Chansu from Ruea Nallah was about 7 kms. In the year 1978, he had taken the contract of Chilgoza in this land from villagers of village Shong for a consideration of Rs. 1600, in the year 1979 for Rs. 14,500/-, in the year 1982 for Rs. 32,000/- and then in 1983 for Rs. 35,500/- from the villagers of village Shong. Villagers of village Shong used to graze their cattle on this land. He never saw the villagers of Chansu exercising such rights. 22. Gita Ram (DW-8) testified that he remained posted as Patwari Halka Sangla from 1962 to 1966. During this period he used to go to Sangla on foot via Shong and Chansu. He remained posted as Patwari in village Kamru in 1978-80. During 1981-82 he remained posted as Office Kanungo and village Kilba upto village Chitkul was under his jurisdiction. He used to visit villages Shong and Chansu in connection with his official duty. He has also deposed that there was Ruea Nallah which was about 7 kms from village Chansu towards Shong and distance of village Shong from this Nallah was about 2 kms. He saw villagers of village Shong exercising their customary rights of taking grass, fuel, wood leaves etc. in the area. He has also deposed that there was Ruea Nallah which was about 7 kms from village Chansu towards Shong and distance of village Shong from this Nallah was about 2 kms. He saw villagers of village Shong exercising their customary rights of taking grass, fuel, wood leaves etc. in the area. Residents of Chansu have never exercised any such rights over the suit land. However, in his cross-examination, he has admitted that residents of village Chansu had their lands in the area on upper side of Limoden. 23. Bhagat Ram (PW-1) proved Misal Hakiyat Ext. PW-1/C for the year 1982-83. However, the Settlement Collector vide order dated 7.12.1991 has deleted the area of Limoden from village Chansu and added it to village Shong. Application was preferred for correction of Ext. PW-1/C on 10.9.1991. Thereafter, spot was visited on 2.10.1991 and case was fixed for evidence of both the parties on the very next day i.e. 3.10.1991. Application was decided on 7.12.1991 vide Ext. PW-1/A. Plaintiffs have not been given ample opportunity before passing order dated 7.12.1991. Plaintiffs ought to have been permitted to cross-examine the witnesses produced by the defendants. Settlement Collector has observed that the suit land from Shong Khud towards Chansu was part of revenue estate Shong. He has also not mentioned that boundary determined by him formed ridges of hill. Natural boundary between Shong and Chansu was Shong Khud. According to the material placed on record, Limoden fell in revenue estate Chansu. Defendants have started exercising their rights only as per Order dated 7.12.1991. Ext. PW-1/C could not be altered in a slipshod manner by the Settlement Collector. He has sent Naib Tehsildar (Assistant Collector 2nd Grade) to collect evidence. This evidence could not be used by him to delete Limoden Mohal from Chansu Mohal. Order passed on 7.12.1991 was passed in a haste without following principles of natural justice. Villagers of Chansu were never called to Shimla though the order has been passed at Shimla on 7.12.1991 by the Settlement Collector. Order has been passed on the basis of statements of DW-3 Bhagat Ram, DW-4 Ram Chand and DW-5 Jamna Dass. According to their deposition before the trial Court, they did not know about the boundaries of village Chansu and Shong. They used to visit the areas for short duration. They did not have any knowledge about the rights of respective villagers. According to their deposition before the trial Court, they did not know about the boundaries of village Chansu and Shong. They used to visit the areas for short duration. They did not have any knowledge about the rights of respective villagers. DW-5 Jamna Dass had gone to the area in 1981-82. He stayed for three days. He did not know about the natural boundary of villages Shong and Chansu. He feigned ignorance about the rights of villagers. In his cross-examination, he admitted that his daughter was married at Village Shong. 24. DW-1 Balwant Singh testified that the persons named Jamna Dass of Kamru, Sunder Dass of Barseri and Laxman Dass of Kamru used to graze their cattle in this area. Similarly, Ram Chand (DW-4), in his cross-examination admitted that he did not know the exact area of Ruea or from where it started and where it ended. 25. Satish Kumar (PW-4) has proved Exts. PW-4/A and PW-4/B. These documents show that the forest compartment No. 151 known as Shong was situate on the left bank of the Baspa river between the Rapo Dhar and the Shong stream. Villagers of Chansu were exercising their grazing rights and other rights. The rights of the villagers of village Shong over this area are mentioned at Sr. Nos. 1 to 13, 16 to 17 and 21 to 24. Ext. PW-4/A and Ext. PW-4/B are copies of record of rights in Sutlej valley forest settlement of the year 1921. Authenticity of these documents was never disputed by the defendants. Ext. PW-1/C is for the year 1982-83, however application for correction was moved only on 10.9.1991. Plaintiffs have duly proved that they were exercising their customary rights over the suit land since time immemorial. Their rights are duly recognized as per Misal Hakiyat Bandobast Jadid for the year 1982-83. Natural boundary was Shong Nallah and not Atangara. Merely that the villagers of village Shong used to receive the dignitaries at Atangara does not mean that it was the natural boundary between Shong and Chansu. Laxman Dass (PW- 6) has testified that he used to pay compensation to the villagers of Chansu for harvesting Chilgoza. Though Anant Ram (DW-7) has testified that he used to make payment for Chilgoza however, he has not placed on record any receipt qua the same. Laxman Dass (PW- 6) has testified that he used to pay compensation to the villagers of Chansu for harvesting Chilgoza. Though Anant Ram (DW-7) has testified that he used to make payment for Chilgoza however, he has not placed on record any receipt qua the same. Rather, in his cross-examination, he has admitted that in the land known as Limoden, there were the land and orchards of villagers of village Chansu. Gita Ram (DW-8) did not know the boundary between the villages Chansu and Shong. He has only visited the area in the year 1982. 26. Vidya Sain (PW-2) was working as Kanungo in the area from 1986 to 1992. This area fell in his jurisdiction. He used to visit the villages Shong and Chansu. According to him, from the side of village Shong towards Chansu, there was a Nallah called Shong Khud (stream). According to revenue record, upto Shong Nallah/Khud, villagers of Chansu had their rights. He had personal knowledge about this fact. Area from Shong Nallah upto village Chansu was called as Limoden, where villagers of Chansu had their residences and Dogris (thatches/huts). They used to graze their cattle, collect leaves and used to harvest Chilgoza from the land. Villagers of Shong had no right in the area. He is an expert witness. He had personal knowledge about the area being a Kanungo during the years 1986-1992. Similarly, Satish Kumar (PW-4), has proved Ext. PW-4/A and Ext. PW-4/B. Court has noticed that compartment No. 152 fell in village Chansu. Ghanshayam Dass (PW-5) remained posted as Block Officer Forest in Sangla during the period 1970-74. Natural boundary between village Shong and Chansu was Shong Khud(stream). Villagers of Chansu were enjoying their rights upto Shong Nallah/Khud (stream) and villagers of Shong never exercised their rights in the area. He also denied that Ruea was the natural boundary. 27. Plaintiffs have duly proved that they are exercising their rights of collecting leaves, fuel wood and Chilgoza since time immemorial, which was open to the knowledge of the defendants, peaceful, and not by stealth or force. They have also proved that they are exercising their rights over long usage. 28. He also denied that Ruea was the natural boundary. 27. Plaintiffs have duly proved that they are exercising their rights of collecting leaves, fuel wood and Chilgoza since time immemorial, which was open to the knowledge of the defendants, peaceful, and not by stealth or force. They have also proved that they are exercising their rights over long usage. 28. A Learned Single Judge of the Calcutta High Court in Purna Chandra v. Durlav Chandra reported in AIR 1980 (Cal) 10 , has held that in order to prove customs it is not necessary that the exercising of customary rights is from time immemorial. It is only that the right is reasonable, it is ancient and it has been exercised openly and peaceably. The learned Single Judge has further held that inhabitants of a particular locality can file a suit to enforce such customary rights. The learned Single Judge has held as under:- “3. Mr. Promatha Nath Mitter, learned Advocate appearing on behalf of the appellants, takes up a point, namely, that the suit is not maintainable. He submits that the suit has been brought by the plaintiffs on behalf of Serampore Sani-para Sikdar Gajon Utsab Sarnity and Hindu public of Serampore Sanipara. Mr. Mitter contends that a suit for establishing customary right and by such a small section of a particular locality is not maintainable, Mr. Mitter frankly concedes that this point was not taken in the courts below. Even this ground was' not taken in this Court in the memorandum of appeal. He however submits that as it is a point of law and as the point involves the maintainability of the suit the appellants should be allowed to urge this point. An additional ground being ground No. 12 was taken on behalf of the appellants. After hearing the learned Advocates for the parties, I allowed the appellants to take the additional ground which is as follows;- "For that the courts below should have held that there cannot in law be a customary right only in favour of a section of the inhabitants of one 'para' of a village as there can be customary right only in respect of all the inhabitants of a district and as such the courts below should have held that the plaintiffs' suit is not maintainable". Mr, Mitter next places reliance on a decision reported in (Patneedi Rudravya v. Velugubantla Venkayya). Mr, Mitter next places reliance on a decision reported in (Patneedi Rudravya v. Velugubantla Venkayya). In this case it has been held that "a phenomenon is said to be happening from time immemorial when the date of its commencement is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity". Mr. Bakshi, on the other hand, contends that law in India is different. It is not necessary that in order to prove a customary right it should be proved that the right is being exercised by the persons claiming the same from time immemorial. It is only necessary that the right is ancient and it has been exercised by the persons claiming the same for a long time. In the present case, Mr. Bakshi submits that it is in evidence that the inhabitants of the locality exercised such right even prior to 1905. Mr. Bakshi refers to a decision reported in (1895) ILR 17 All 87 (Kuar Sen v. Mamman). In this case it was held that "where the local custom excluding or limiting the general rules of law is set up a Court should not decide that it exists unless such Court is satisfied of its reasonableness and its certainty as to extent and application, and is further satisfied by the evidence that the enjoyment of the right was not by leave granted, or by stealth, or by force, and that it had been openly enjoyed for such a length of time as suggests that originally, by agreement or otherwise the usage had become a customary law of the place in respect of the persons and things which it concerned". Mr. Bakshi submits that in the present case it has been proved by oral and documentary evidence that the inhabitants of the particular locality exercised the rights which they claimed for a long time openly and uninterruptedly and as such it must be held that they have acquired a customary right Mr. Bakshi next refers to a decision reported in AIR 1943 PC 111 (Baba Narayan Lakras v. Saboosa). Bakshi next refers to a decision reported in AIR 1943 PC 111 (Baba Narayan Lakras v. Saboosa). It has been held that "it is by no means conclusive against a claim to customary right that the practice should have begun by permission or agreement, but it must be shown to have continued in such circumstances and for such length of time that it has come to be exercised as of right." MR Bakshi also seeks reliance from a case reported in (1941) 68 Ind App 1 (PC) (Musammat Subhani v. Nawab) in support of his contention that it is not necessary to prove that the right has been exercised from time immemorial. It has been held by the Judicial Committee that "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 case 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". After considering the arguments advanced by the learned Advocates for the parties and the principles of law enunciated in the cases referred to above, I am of opinion that in India it is not necessary that it must be proved that the right is being exercised from time immemorial. If it is proved that the right is reasonable, it is ancient and it has been exercised openly and peaceably and without any interference and not stealthily then such a right assumes the character of a customary right and that right can be enforced in a court of law. I cannot accept the submission of Mr. Mitter that such a right can be claimed only by all the inhabitants of a district and the same cannot be claimed by the inhabitants of a particular locality.” 29. Mr. B.C. Negi, learned Senior Advocate has also made reference to Section 47 of the Indian Easements Act, 1882. This point was never raised before the learned Courts below. Thus, the defendants are precluded from taking this plea at this stage. 30. The learned Courts below have correctly declared dated 7.12.1991 (Ext. PW-1/A) as well as mutation order No. 15 dated 23.3.1992 (Ext. This point was never raised before the learned Courts below. Thus, the defendants are precluded from taking this plea at this stage. 30. The learned Courts below have correctly declared dated 7.12.1991 (Ext. PW-1/A) as well as mutation order No. 15 dated 23.3.1992 (Ext. PW-1/B) as illegal and void. The learned Courts below have correctly appreciated the oral as well as documentary evidence on record as well as Exts. PW-4/A, PW-4/B, PW-1/A and Ext P-1. The plaintiffs have proved their customary rights strictly as per Sections 13 and 48 of the Indian Evidence Act. 31. The substantial questions of law are answered accordingly. 32. Accordingly, in view of the discussions and analysis made hereinabove, the present appeal has no merits and the same is dismissed. 33. Pending applications, if any, also stand disposed of. No costs.