ARUNACHALAM CHETTY (DIED) Vs. RAMANATHAN CHETTY

JUDGEMENT

(1.) AFTER hearing the arguments of the appellants learned Vakil, I am of opinion that no misconstruction of any doments or the ignoring of any material evidence by the lower Appellate Court has been established . Then, it was contended that the lower Appellate Court had failed to give effect toe the doctrine that where a public path is admitted to be the boundary between two estates, the presumption is that the soil up to half the breadth of the road belongs to each estate. Assuming that that presumption is applicable in India, it must be confined to cases where it is clearly proved, or both sides are agreed, that the limits of each village do not extend beyond the offside of the path In this case, the plaintiffs claimed in their plaint that besides the whole width of the path, something beyond to the west of that breadth belonged to their village and the defendants made a similar claim as regards some breadth east of the path and the Courts could not come to any conclusion on the point. The lower Appellate Court was therefore, not wrong in refusing to raise any such presumption in this case. This second appeal and the connected second appeal are, therefore, dismissed with costs. Napier, J.

(2.) THERE is no evidence of the date of the origin of this so-called highway. It is a path it may be, a cart track--running between two villages. At one time it must have been within the area of one village or the other as the villages were contiguous. THERE should have been no difficulty in procuring evidence from the zemindari records of the true facts of the case, but no attempt has been made to do this. It is sought to apply the ad medium film doctrine in the absence of evidence. I decline to apply it, first, because there is no evidence of any defined limits of this so-called highway and secondly, because the pathway must have been there at the time that both villages were in the same owner and, there fore, the artificial presumption of a grant of half by contiguous land holders, has no application.