HARISADHAN DE Vs. RADHIKA PROSAD PANDIT

JUDGEMENT

(1.) This is a representative suit under Order 1, Rule 8, Civil P.C. for declaration of right to what is described as a village pathway in the plaint. The suit was decreed by the learned Munsif of Amta. On appeal, this decision was reversed by the learned Subordinate Judge of Howrah, and hence this appeal by the plaintiffs. The main contention of the appellant is that the lower Appellate Court applied a wrong test in determining the right claimed in the suit, and that this was due to a misconception of the nature of the pathway concerned. It was pointed out that throughout the plaint, the pathway was described and claimed as a "village pathway" but that the learned Subordinate Judge treated it as a " public pathway" and dealt with the case on that basis. It cannot be disputed that this would make a difference, for, as was pointed out by Wilson J. in the Full Bench decision in Chuni Lall V/s. Ram Kishen Sahu (1888) 15 Cal 460 (FB), there are three distinct classes of rights of way : first, private rights in the strict sense of the terms vested in particular individuals, and such rights commonly have their origin in grant or prescription; secondly, rights belonging to certain classes of persons or certain portions of the public, such as the freemen of a city, the tenants of a manor, or the inhabitants of a village; and such rights commonly have their origin in custom; and thirdly, public rights in the full sense of the term which exist for the benefit of all the King's subjects, and the source of these is ordinarily dedication. There can be no doubt that the question which the learned Subordinate Judge addressed himself to in this case was as to whether dedication had been proved; and holding that there was no evidence of dedication, he dismissed the suit. Thereby, it is complained, he disposed of the case on a wrong basis.

(2.) It is true that the plaint refers to the pathway as a village pathway, though, as the learned Munsif points out, it may be said that the averments do not make it quite clear "whether plaintiffs claimed a right of easement by prescription or a village pathway by custom, or a public pathway by dedication". See para. 4 of the plaint in which "right of easement by prescription" is claimed by virtue of long, peaceful and open enjoyment as of right and without interruption, as well as "grant and agreement presumed from immemorial user". Without construing the plaint very strictly, I think it may be fairly taken that what the plaintiffs intended to plead was a customary easement, not an easement proper, though custom was not expressly or specifically pleaded. The question would then arise if in that view the plaintiffs had given such evidence as would be sufficient to establish the custom they now sought to rely on. The learned Munsif points out that from the evidence adduced, since the beginning of the trial, it appeared that the plaintiffs relied on dedication or presumed grant, and he also said that he would consider only the question of a public pathway, and not of a village path- way. As his decision went in favour of the plaintiffs, naturally they did not complain. Be that as it might, I decided to examine the evidence for myself on the basis now urged for the first time by the appellants, and having done so, I may state at once I have come to the conclusion that the plaintiffs must still fail.

(3.) As I have already indicated, a customary right such as the plaintiffs claim is not an easement properly so called. An easement proper belongs to a determinate person or persons in respect of his or their land. A congeries of persons, such as the inhabitants of a locality, unless incorporated as a determinate juridical person, cannot claim an easement. A customary right belongs to no individual in particular. It may be enjoyed by anyone who inhabits a particular locality for the time being, or who belongs to the particular class entitled to the benefit of the custom. Easements are, so to speak, private rights belonging to particular persons, while customary rights are public rights annexed to the place in general.