JOGESH CHANDRA ROY Vs. SMSACHCHHANDA

JUDGEMENT

(1.) This appeal is on behalf of the defendant it arises out of a suit instituted by the plaintiffs for declaration of their right of way from their homestead over the bank of the defendant's tank to a public highway farther south and for a permanent injunction restraining the defendant from putting obstructions. The plaintiffs alleged that they had acquired the right of way by prescription and alternatively they say that the way is a way of necessity. Although the lower appellate Court has given a decree to the plaintiffs also on the footing that the way is a way of necessity, that part of the judgment is not sought to be supported before me. The plaintiffs and defendant hold under different landlords and the plaintiff's homestead and the tank of the defendant's tank had never been held under a common title. The only question therefore in this appeal is whether the findings arrived at support the claim based on prescription.

(2.) The defendant took the defence that the plaintiffs homestead had been abandoned for about 24 years, and that there had not been any user for a long period. They accordingly contended that the plaintiffs claim based on prescription cannot be supported. The 1 Court found that the plaintiffs did not occupy their homestead for six or seven years holding that there could not be any possible claim based on prescription. The lower appellate Court did not agree with this finding. The material findings arrived at by the lower Appellate Court are the following: (i) the pathway had been used for more than 50 years; (ii) that the homestead of plaintiffs had never been abandoned; (iii) that it was not a fact that the plaintiffs ceased to live in their homestead for six or seven years; (iv) that since the death of plaintiff 1's son (which occurred in 1900) the plaintiff had bean living sometimes in her daughter's house and sometimes in her own homestead.

(3.) The appellant relies on the last finding and (sic) that the continuity in the enjoyment has been broken and the plaintiffs claim based on prescription must be negatived. The findings of the Subordinate Judge make it clear that 20 years enjoyment had been completed before the plaintiff's son died when the plaintiff began sometimes to live with her daughter and sometimes in her own hut. In order that a prescriptive right may be successfully claimed the pathway must be enjoyed peaceably and openly as an easement without interruption for more than 20 years. The term interruption refers to an adverse obstruction, not a mere discontinuance of user Cart V/s. Foster (1868) 3 QB 581, Hollins V/s. Verney (1885) 13 QBD 304, Smith V/s. Baxter (1900) 2 Ch 138. A person may be said to be in enjoyment of a right of way during a period of time, though he does not use the way every moment. Cessation of user is not an invariable indication of the abeyance of enjoyment of a right, that is, it is not inconsistent with the continuance of the enjoyment of the right (see Gopal Chandra V/s. Bankim Behary. 1919 Cal 357. I would accordingly hold that the learned Subordinate Judge is right in holding that the plaintiffs have a right of way over the batik of the defendant's tank which right has been acquired by prescription.