MAHAD SATYAGRAHA 45
Municipalities Act. It is also conceded now that the caste Hindus are not entitled to exclusive user of the tank as against all the world, since Mohamedans may and do use it. It is contended nevertheless that the appellants have the right to use it themselves and to exclude the ‘Untouchables’ from it, and this right is said to be based on immemorial custom.
The Trial Judge found that the plaintiffs have proved a longstanding custom (he does not describe it as immemorial) of using the tank water to the exclusion of the ‘Untouchables.’ He held however that the custom conferred no legal right upon the plaintiffs because ‘mere user of a public tank by one class and non-user by another would not clothe the class making the user with any legal rights or rights of ownership.’ On appeal, the Assistant Judge confirmed the finding that the caste Hindus have not proved that they have any legal right to exclude the ‘Untouchables.’ He has relied to some extent on a judgement of Sir Sadashiv Ayar V. Vaithilinga, a case not reported apparently in the authorised reports but to be found in 1913 Mad. W. N. 247 and 18 Indian cases 979; but his main reason seems to be that he held that the custom is not shown to be immemorial.
The Chawdar Tank is a small lake or large pool; between four and five acres in extent, on the outskirts of the town. It is surrounded on all sides by municipal roads beyond which are houses occupied by caste Hindus (and a very few Mohamedans), and the owners of these houses also own in many cases strips of land on the edge of the tank, ghats or flights of steps to get to the water and the masonry embankments along the sides. There are no houses of ‘Untouchables’ anywhere near. It is not known how old the tank is, except that it is admittedly not less than 250 years old. There is no evidence as to its origin. It is not even clear that it is artificial. The Trial Judge took the view that it was ‘a natural excavation in the bed of the earth, of course repaired and remodelled by human agency.’ If this is so—and the point was not disputed in the argument before us—it is probably many centuries old. The water supply comes from the monsoon and a few natural springs. The population of the town Mahad is between seven and eight thousand, of whom less than 400 are ‘Untouchables.’ The Municipality was established in 1865, but