GAJO RAI Vs. GAURA DEVI

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs alleged that they built houses on plots 1627 and 1633 of village Nawasakhi about forty years back. It was also alleged by the plaintiffs that they had been using gairmazrua plot No. 1626 as passage for going from their new houses to their old house located in plot No. 1769 and also for going to a tank and to the forests located on the south of the tank. The plaintiffs alleged that the defendants had begun to interfere with their right of easement, and so they brought the present suit for a declaration that that they have acquired right of way over a portion of plot No. 1628 of village Nawasakhi. The suit was contested by the defendants mainly on the ground that the houses were built On plots Nos. 1627 and 1633 about ten years back. The defendants also asserted that the plaintiffs have acquired no right of way over plot No. 1626. The trial Court held that the plaintiffs have acquired right of way over plot No. 1626 by prescription for the statutory period. The defendants appealed to the lower appellate Court, which allowed the appeal and dismissed the suit on the ground that the plaintiffs had not established their right of passage over plot No. 1626 of village Nawasakhi.

(2.) On behalf of the plaintiffs-appellants learn ed Counsel submitted, in the first place, that there was a finding by the lower appellate Court that there was actual user of the land by the plaintiffs as passage for more than twenty years, and the lower appellate Court should, therefore, have applied the presumption that the plaintiffs were using the pas sage as a matter of right. In support of his argument learned Counsel referred to a decision of the Patna High Court in Nazir Hussain v. Aulad Haider, AIR 1926 Pat 460, to a decision of the Madras High Court in Kunjammal v. Rathinam Pillai, ILR 45 Mad 633 : (AIR 1922 Mad 5) and a decision of the Pun jab High Court in Piare Lal v. Ishaq Lal, AIR 1920 Lah 522 (1). We do not agree with the contention of learned Counsel that mere user of a piece of waste land as passage gives rise to a presumption in law that the claim as user was as a matter of right. This view is supported by a decision of this High Court in Nasiruddin v. Deokali AIR 1929 Pat 124 and a decision of the Calcutta High Court in Khoda Buksh v. Tajuddin, 8 Cal WN 359. There is a recent decision of a Division Bench of this High Court, in Salina Jitendra Lal Sinha v. Ram Charan Gope, 1959 BLJR 226 : (AIR 1959 Pat 475) where the question was elaborately discussed and it was pointed out that it was wrong to say that merely because there was no cultivation in the disputed land, there would be a presumption, either in law or in fact, that there is a user of the pathway by the villagers as a matter of right. There is nothing in the decision of this High Court in AIR 1926 Pat 460 which is in conflict with the view taken by the later course of authorities to which we have made reference. Even in AIR 1926 Pat 460 Das J. was careful enough to say that the proposition laid down by Banerji, J. in 8 Cal WN 859 was undoubtedly correct, and Das J. said that he "entirely agreed with that view". The learned Judge further observed in that case that the question was one of fact, and the question whether there was user as a matter of right really depended upon the special circumstances adduced in evidence by the parties in each case. In the present case the lower appellate Court has discussed the oral and documentary evidence adduced by both the parties and it has reached the conclusion that the plaintiffs have not established that they have been using the passage as a matter of right for the statutory period. The finding of the lower appellate Court is a finding on a question of fact, and we do not accept the contention of learned Counsel for the appellants that this finding is vitiated by any error of law.

(3.) It was argued on behalf of the appellants that upon the facts found by the lower appellate Court the plaintiffs should have been given a declaration that there was easement of necessity with respect to the disputed passage. We are afraid that this argument also cannot be accepted. In the plaint it is not alleged by the plaintiffs that they have acquired right of passage because there was easement of necessity. There was no issue framed on this point, and in the absence of any pleading or any issue it is obvious that the plaintiffs cannot be granted a decree that they have acquired a right of easement of necessity with regard to the disputed passage.