Where the question is as to the existence of any right or custom, the following facts are relevant—
(a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.
Illustrations
The question is, whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father, irreconcilable with the mortgage, particular instances in which A's father exercised the right, or in which the exercise of the right was stopped by A's neighbours, are relevant facts.
Legal Commentary & Landmark Judgments: Section 11
Section 11 codifies the evidentiary framework for proving the existence, modification, or termination of legal rights and customary practices, admitting historical transactions and specific instances of exercise.
Litigators establishing or contesting customary rights must assemble an unbroken chain of historical documentation under Section 11. Certified copies of ancient revenue records, archival settlement registers, and prior judicial decrees recognizing the right—even between different parties—are admissible to demonstrate continuous assertion.