46 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
there is no evidence available, at any date on the record of this case, as to the early history of the town or as to the time when the side was first inhabited.
The Plaintiffs have examined a number of witnesses, many of them old inhabitants, whose evidence may be said to have established that within the period of living memory the tanks has been used exclusively by the Caste Hindus (and a few Mohamedans) and has never been used by the ‘Untouchables’. It is in fact admitted that the latter never used it, before the year 1927, when a campaign against the doctrines of ‘Untouchability’ was carried out by defendant No. 1, and some of the ‘Untouchables’ went and drank water as a protest. They were assaulted and beaten by the caste Hindus and there were criminal prosecutions which led to the present suit. As there is no record of any attempt having been made by the ‘Untouchables’ to use the tank before that, there is no evidence of any positive acts of exclusion. What is provided is user by one party and absence of user by the other. This was due, no doubt to any accidental causes but, to the mutual acceptance of the doctrine of ‘Untouchability’ which until recent years was not openly challenged.
The learned Assistant Judge comments on the fact that there is no evidence of the exclusion of the ‘Untouchables’ in pre-British times, nothing to show that the exclusion of exclusive user was in force in the days of the Maratha rule or the Musalman rule. It is of course not always necessary to produce evidence going back beyond the memory of living persons. On proof of enjoyment for a period, even less than that, the Courts have frequently felt justified in holding, in the absence of evidence, to the contrary that a custom has existed from time immemorial. Nor, of course, is it necessary in case of this kind to have evidence of positive acts of exclusion of one party by the other. There could be no such evidence as long as the enjoyment of the caste Hindus was not challenged, and it would not be likely to be challenged as long as the doctrine of ‘Untouchability’ prevailed and was accepted. But a custom proved to have existed during the period of living memory can only be presumed to have existed from before the period of legal memory in case where conditions may be assumed to have been permanent and stable so that it is reasonable to infer