KASI NATH BHATTACHARJEE Vs. MURARI CHANDRA PAL

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for declaration of a right of way over the land described in the plaint.

(2.) The plaintiffs based their claim on user for over one hundred years and also asserted that the way was an easement of necessity. They obtained a partial decree in the Court of first instance. On appeal, the Subordinate Judge gave them a larger measure of relief, on the ground that they had established the right of way claimed on the presumption of a lost grant. Upon second appeal to this Court, Mr. Justice Newbould has, on the facts found by the Subordinate Judge, come to the conclusion that the theory of a lost grant was not applicable, On the present appeal, it has been contended that the case was concluded by the finding of the Subordinate Judge and that it was not competent to Mr. Justice Newbould to reverse that finding on second appeal.

(3.) The Subordinate Judge found that the plaintiffs and their predecessors had exercised a right of way for over sixty years, though there had been an interruption of that right for 10 or 12 years, and he concluded that there must have been a lost grant.