Vol. 17, Part I · pages 71–75

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

47MAHAD SATYAGRAHA 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,

48 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES are not really on all fours. In such case long practice acquiesced in by the other castes and communities may naturally give rise to a presumption of dedication to the exclusive use of the higher castes, and may throw upon the ‘Untouchables’ the burden of proving that they are among the people for whose worship a particular temple exists. No such presumption of a lawful origin of the custom can be said to arise here. We therefore agree with the learned Assistant Judge that the appellants have not established the immemorial custom which they allege. Had they succeeded on this point it might have been necessary to consider whether the custom were unreasonable or contrary to public policy (though strictly speaking, it was not pleaded in the lower courts). It would certainly have been necessary to consider the legal effect of the vesting of the Chawdar Tank in the Municipality, and the question whether in any case the appellants could be granted any relief in this suit in which the legal owner is not a party. But as it is not necessary to decide these questions in the view we take of the case, and as they have not been very fully or effectively argued, we prefer to express no opinion. Appeal dismissed with costs. The seal of the By order of the Court High Court at Sd/- R. S. Bavdekar, Bombay. Registrar Sd/High Court Appellate For Deputy Registrar” Side certified copy the 28th day of June 1960. 1 Bombay. The words of Dr. B. R. Ambedkar that “Lost rights are never regained by begging, and by appeals to the conscience of the usurpers, but by relentless struggle” have been proved by Mahad Satyagraha.—Editors. zz 1 : Khairmode, Vol. 3, Pp. 258-263.

SECTION II DR. AMBEDKAR—MAHATMA GANDHI MEETINGS