AUGRAHIT NAPIT Vs. NABNATANNESSA BIBI

JUDGEMENT

(1.) THIS appeal is preferred by the defendant against the decision of the learned District Judge of Birbhum, dated the 12th April 1915, decreeing the plaintiff s suit. The plaintiff sued for declaration of a right of way. The case is one of those which are common in this country, namely, where the plaintiff and the defendant have both a leasehold interest or the interest of a tenant claiming under a common landlord; and it has been considered and argued in this case as to whether the person who has a lessee s interest or an absolute interest can obtain a right of way and as to whether one tenant can obtain an easement over another tenant of the same landlord. But these matters I do not think are really necessary for our consideration in this case, because the case shows quite clearly that at some time these two properties of the plaintiff and the defendant must have been held together. They have got a common owner and at one time there must have been unity of possession. If that is so, then taking into consideration the length of time during which this right of way has been enjoyed, namely, more than twenty years, I think, following the decision of Sir Lawrence Jenkins, C.J., and Mr. Justice D. Chatterjee in the case of Madan Mohan Chakravarty v. Sashi Bhusan Mukherji 31 Ind. Cas. 549 : 19 C.W.N. 1211, we ought to hold that the proper conclusion to arrive at on those facts is that there was an implied grant of this way that was used for so many years in favour of the plaintiff at the time of the severance of the land with these two portions. That being so, it is not necessary to interfere with the decree of the lower Appellate Court. The present appeal, therefore, fails and must be dismissed with costs. Walmsley, J.

(2.) I agree.