RAMHARY PAL Vs. NIDHI MAHANTY

JUDGEMENT

(1.) The dispute in this appeal relates to cretain plots in village Iswarpur in the District of Balasore, namely, plots Nos. 409 which is a tank, 427 (which is waste land) and 512 (which is an orchard). The plaintiff is admittedly the owner of these plots and the only question in the suit is whether certain entries in the current settlement relating to these plots are correct. The entry with regard to plot No. 409 was that the people of the village used to take water and catch fish in it and the entry with regard to plots Nos. 427 and 512 practically amounts to this that the people of the village have a right of way over them.

(2.) The learned Munsif came to the conclusion that the current settlement entries were wrong and that the defendants had acquired no right of easement with regard to any of these plots. This decision was reversed in appeal by the learned District Judge who held that the current settlement entries had not been rebutted and that the defendants had acquired by prescription a right of way over plots Nos. 427 and 512 and the right to take water and catch fish in plot No. 409.

(3.) Now it is contended by the learned Advocate for the appellants with regard to plot No. 409 that their right to catch fish cannot be described as a right of easement and that the correct description of it is that it is a profit a prendre and, therefore, the mere fact that the inhabitants of village Iswarpur had been catching fish for over 20 years will not give them the right to catch fish in the tank. 5. On behalf of the respondents, however, reference has been made to Section 2 of the Limitation Act where easement has been defined as including a right, "not arising from contract? for his own profit any part of the soil belonging to another or anything growing in, or attached to or subsisting upon, the land of another." In the case of Hill and Co. V/s. Shepraj Rai 67 Ind. Cas. 954 : 1 Pat. 674 : (1922) Pat. 195 : 3 P.L.T. 477 : 4 U.P.L.R. (pat) 38 : 1 Pat. L.R. 34 : A.I.R. 1932 : pat. 58 it was definitely laid down that a mere bright to fish not excluding the rightful owner is a profit a prendre and falls within the definition of easement given in Section 2(5) of the Limitation Act and may be acquired by to Bars uninterrupted enjoyment under Section 26. It appears to me, therefore, that no fault can be found with the decision of the learned District Judge in so far as it does not draw a distinction between the alleged right of way over plot No. 427 and plot No. 512 and the right to catch fish in plot No. 409. The broad ground of the decision of the learned District Judge is that the current settlement entry has not been rebutted. Reliance was placed before the learned District Judge on the fact that the revisional survey entry did not record that the villagers had any rights over the three disputed plots, but the learned District Judge has to my mind effectively disposed of this argument in the following words : The Munsif a argument that the right of way cannot have been used for the prescriptive period or it would have found entry in the Revisional Settlement of 1908 does not appear to me sound. It might well be that the villagers commenced to use the track only a few years before the final publication of the Revisional record. They would then have no right at that time but would have matured since and there is no reason why the correctness of the current entry should be doubted. 6. The learned District Judge has clinched the matter by pointing out that plaintiff No. 1 admits that he was looking after the current settlement operations but he made no objection to the entries made and that that was very strange. 7. It appears to me that the finding of the learned District Judge that the current settlement entry is correct and has not been rebutted is a finding of fact and as such binding on this Court in second appeal. 8. Mr. Ray appearing or the appellants, however, has put forward one substantial argument with regard to the right of way claimed by defendants in regard to plots Nos. 427 and 512. Before I refer to his argument it may be mentioned that in para. 8 of the written statement the defendants did not claim a right of way over the whole of plots Nos. 427 and 512 but only over a certain portion of these two plots. This is also clear from the map drawn by the commissioner who was deputed by the trial Court to mate the local investigation. In these circumstances it is contended by Mr. Ray that the decree of the Court below should have definitely recorded the limits, of the pathway which the defendants are entitled to use. Mr Ray argued that one of the necessary conditions of a right of easement is that it must be certain, but this contention is answered by the fact that the defendants themselves claim a right of way over only a portion of plots Nos. 427 and 512. The fact, however, remains that in order to set the dispute between the parties at rest the extent of the alleged pathway should have been stated in the decree. As it is, there is a good deal of vagueness about the matter as will appear from the fact that the commissioner's map shows the pathway as running entirely on plot No. 512, whereas the defendants claim that it runs partly on plot No. 427 and partly on plot No. 512 and the learned District Judge himself at one place opines that it may be that the path really lies along plot No. 427 or partly in plot No. 427 and partly in plot No, 812. 9. In this state of uncertainty I think this case ought to be remanded to the Court, below in order to enable it to state definitely in the decree the limits of the pathway which the defendants and the other villagers are entitled to use. In this connection Mr. Ray quotes the following passage from Mr. Katiar's Law of Easement which is borrowed from the well- known treatise on the same subject by Goddard: When the two terminii are known, the right to the way does not fall merely for want of a denned track between them, and if the owner of the servient tenement does not point out the line of such way, the dominant owner must take the nearest way he can. If the owner of the servient tenement wishes to confine him to a particular track, he must set out a reasonable way, and then the person is not entitled to go out of the way merely because the way is rough, and there are ruts in it and so forth. 10. In my opinion the learned lower appellate Court will have in the first instance to find out what particular pathway has been used by the defendants, but these observations have got to be kept in view in case there is any difficulty in finding out such a pathway. 11. The result, therefore, is that the appeal is dismissed with regard to No. 409 and is partly allowed with regard to plots Nos. 427 and 512 in the sense that the extent of the pathway will have to be determined by the lower Appellate Court. As the reliefs are claimed in somewhat vague terms in the plaint and the plaintiff did not specifically ask the Court to define the limits of the pathway, it is only right that the costs of the proceedings before the lower Appellate Court should be borne by the plaintiff. The respondents will be allowed half the costs of this appeal but the appellant must pay the costs of the two Courts below.