JOGESH CHANDRA ROY Vs. NIRANJAN DE

JUDGEMENT

(1.) The plaintiff in the suit in which this appeal has arisen wanted to have khas possession of certain lands described in the plaint in total denial of the defendants right of way and of a right asserted by them to use a portion of the said lands as a cremation ground. The contesting defendants it would appear, asserted user of the lands in question as a pathway and cremation ground for the period of 50 years before suit. The right of way asserted by the defendants in the suit is not in question in this appeal preferred by the plaintiff; the subject- matter of the appeal to this Court is confined to the defendants right to use a portion of the lands in suit as a cremation ground.

(2.) The Courts below agreed in holding that the plaintiff in the suit was not entitled to get khas possession of the portion of the lands in suit in regard to which the defendants asserted, that it was a cremation ground. The question raised in the Court below on this part of the case, was, whether the, defendants had any right of easement by custom or immemorial user in any portion of the lands used as cremation ground. It was held that an easement, could not be acquired in regard to the cremation ground, under the Limitation Act. This position is not challenged by the defendants respondents in this Court. The Court below then proceeded to hold that the acquisition of such a right must be ascribed either to custom or to immemorial user giving rise to a presumption of lost grant. Custom was not pleaded by the defendants in the suit, and no customary right was asserted by them in regard to the cremation ground. The Court below upon the evidence on the record, came to the conclusion that it was quite sufficient for conceding to the defendants a presumption in their favour about a lost grant.

(3.) As indicated already, the plaintiff has appealed to this Court for the purpose of questioning the propriety of the decision of the Court below, the effect of which was that the defendants in the suit could acquire right of the description claimed in the suit of using the plaintiff's land as cremation ground, by prescription.