KSHIROD CHANDRA GHOSE Vs. SRISH CHANDRA GHOSE

JUDGEMENT

(1.) This appeal arises out of a suit for establishment of a right of way and for other reliefs.

(2.) The plaintiffs alleged that they and their predecessors before them had enjoyed the right of way peaceably, openly, as of right and without interruption for about a hundred years, and prayed for establishment of their ancestral right of way, "a right by possession for a period over the period of limitation, or a right of easement by user and necessity."

(3.) The defendants pleaded inter alia that the plaintiffs had no right of way. The Court of first instance held that the pathway beyond 3 cubits in width had been obstructed for seven years before the suit and apparently treating the suit as one under Section 26 of the Limitation Act, held that such portion of the claim must be dismissed, but gave a decree for a right of way to the extent of 3 cubits in width in respect of which the plaintiffs had proved user within two years of the suit. Both parties appealed to the lower Appellate Court and that Court held that the right of way had boon in existence from 1839 and that the same clearly proved a "right by grant or otherwise an ancient right of way for the plaintiffs in the disputed land, and a right independently of the right by user or easement right given by the Limitation Act" and that the "plaintiffs right was not dependent on the evidence of 20 years user and user within two years of the suit," and accordingly decreed the appeal of the plaintiffs.