MAHAD SATYAGRAHA 47
that what has happened during the period covered by the evidence has also happened from time immemorial. This is where the plaintiffs’ case in our opinion breaks down. As long as conditions were at all similar, as long as the houses of the Caste Hindus have surrounded the tank, (which is not necessarily very long as the tank is on the outskirts of the town and the land around it would not likely be occupied until after considerable expansion of the original settlement) it may be safely presumed that the practice was the same as at present. It would not be safe to presume, however, that conditions have been similar for a period long enough to establish the alleged custom. The Konkan has had a chequered history, even in comparatively modern times, and to suppose that the Caste Hindus have been in a position to exercise exclusive control over this large natural reservoir situated as it is, from time immemorial, would be contrary to reasonable probability.
In this connection some of the observation of Sir Sadashiv Ayar in Mariappa V. Vaithilinga are very instructive. He cites a saying of Manu; ‘Waters are pure as long as a cow goes to quench her thirst in and they have a good scent, colour and taste,’ and he points out that the Shastric writings ‘Make a distinction between rivers, tanks and other receptacle which are more easily contaminated and where purification by time, atmospheric conditions and movement of the water is much more difficult.’ The learned Judge suggests that the dictates of the Hindu religion would not require any elaborate precautions against the pollution of water in a large open tank, and he was dealing with a tank in a village site considarably smaller than the Chawdar Tank at Mahad. The doctrine of ‘Untouchability’ therefore does not appear to go far enough to lend very much support to the appellants’ case and it is doubtful whether any attempt would be made to secure exclusive user of the water until such time as the tank came to be surrounded by the houses of the caste Hindus.
This is the only case to which our attention has been drawn dealing with a claim to exclude ‘Untouchables’ from the use of a watering-place of this description. The temple-entry cases, e. g. Anandrav N. Shankar, (1883) I. L. R., 7 Bom. 323, and Sankaralinga V. Rajeswara, (1908) I. L. R„ 31 Mad. 236, P. C,