KALI PADA BOSE Vs. FANI BHUSAN ROY

JUDGEMENT

(1.) In this appeal the questions that have been argued before us are, (1) that the decree of the lower Appellate Court is not in consonance with the judgment; (2) that the view taken by the lower Appellate Court that the plaintiffs have got a right of way over what has been described as the disputed pathway ghat and boat passage by prescription is wrong; (3) that, having regard to the finding of lower Appellate Court that the plaintiffs have not got any such right as has been claimed by them by grant, express or implied, the judgment of the lower Appellate Court cannot stand; and (4) that, having regard to the finding oil the lower Appellate Court that there is an alternative way, the pathway claimed by the plaintiffs on the ground of its beings an easement of necessity cannot stand.

(2.) So far as the first point is concerned the material portion of the judgment of the lower Appellate Court runs in theses words : " In point of fact, the disputed; pathway lies to the south and beyond the boundary of the bari of the principal defendants." It is argued on behalf of the appellants that the decree that has beer drawn up is not in accordance with what I have just read out, and that there has been embodied a declaration in the decree, the effect of which is that the pathway falls within the homestead of the principal defendants. So far as this point is concerned, if there was any divergence between the terms of the decree and the judgment of the lower Appellate Court, it was clearly the duty of the appellants to draw the attention of the lower Appellate; Court to such divergence, if any. This point cannot, by any means, be treated as a point which is admissible in second appeal in this Court and, therefore, so far as this point is concerned we are unable to interfere. It will not be understood, however, that in setting out the contention of the appellants there is any expression of opinion on our part as regards the validity or substance of the contention. We express no opinion but desire to rest our judgment on this, namely, that a point relating to an amendment of decree is not a point which can be urged in second appeal.

(3.) So far as the second point is concerned, the finding of the lower Appellate Court would seem to be conclusive. The facts are that both the plaintiffs and the defendants are tenants of one and the same landlord. Both have permanent rights and the finding of the lower Appellate Court is in these terms : Both parties have permanent rights in their respective lands, and the defendants admit the existence of the pathway and the user thereof by the plaintiffs since over 30 years without interruption, peacefully, publicly and as of right. Now, as has been pointed out in the case referred to in the judgment of the lower Appellate Court, namely, the case of Madan Mohan V/s. Sashi Bhusan (1915) 19 C.W.N. 1211, the incidents of a permanent tenancy in this country are different from the incidents of a termor for years as they obtain in England, and it would seem that there is no substantial reason for holding that in a case of the description such as has been referred to in the judgment of the lower Appellate Court, a tenant with permanent right has no rights of easement against another tenant enjoying the same rights. But the point does not rest merely on that. Having regard to the finding of the lower Appellate Court, namely, that the plaintiffs have used this road without interruption, peacefully, publicly and as of right, it must be taken that the user had a lawful origin, although the circumstances relating to the origin of this user may not be known. Now, it must be taken that the origin is traceable to a grant which is not forthcoming, which, mother words, is a lost grant. We are not in agreement with the portion of the judgment of the lower Appellate Court in which it is stated that an implied grant cannot be presumed in the circumstances of the present case, and we think that the user by; the plaintiffs without interruption, peacefully, publicly and as of right for a period of over 30 years ought to be traced to a lost grant. That disposes of the second and third points which have been urged before us.