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Second Appeal No. 587 of 1959, decided on 12th April 1962.
‑Prescription---- Right' of user to be proved by claimant‑Mere user for innumerable years does not confer prescriptive right‑High Court not to interfere in such finding of fact in second appeal‑Principles of English Law not appli cable‑Provisions of Limitation Act (IX of 1908), S. 26 to be satisfied in this behalf.
Tofazzal All for Appellant.
Syed A. B. Muhammad Hossain with Syed A. N. Nasiruddin with M. Zahir for Respondents.
In the present case defendant No. 2 is the appellant. He has appealed against the judgment and decree pronounced by the learned Subordinate Judge, Sylhet, partially decreeing the plaintiffs' suit which was dismissed in its entirety by the trial Court. The plaintiffs have preferred a cross‑appeal to the extent their suit was dismissed by the Courts below.
2. Plaintiffs case has been that they and their co‑villagers used path No. 1 as shown in the map prepared by the Pleader Commissioner for going to the south from their houses with cattle and other necessaries of life and that they have been using path No. 2 for the same purpose for going to the river Borak which lies to the north of their homestead.
3. Pathway No. 1 has been marked with Bengali alphabets "Ga" and "Uma". "Ga" representing the western end of the pathway where it meets path No. 3, and "Uma" representing the corner where the path No. 1 takes a turn directly to the east. "Ga" is at station No. 9 and "Uma" is at station No. 5. Path No. 2 has been marked with Bengali alphabets "Cha" and "Ja" at the two ends "Gha" is at the end where path No. 2 meets at right angle with path No. 1 and "Ja" is at the northern end of the path where it meets the "Gopath" running along the southern bank of the river Borak. One Akbar and his brothers used to have their homestead on a plot of land lying to the north‑west of station No. 5 which extends right up to the "Gopath" on the north running along side the southern bank of the river Borak. Akbar and his brothers, according to the plaintiffs, used to come out of their homestead to the Gopath lying to the south by path No. 1‑via path No. 3 and they used to go to the river Borak by path No. 2‑viz. path No. 1. Akbar Ali and his brothers have been using the pathways in the manner aforesaid for a time which is more than 20 years. The plaintiffs purchased this homestead and other lands of Akbar Ali and his brothers and went into possession thereof. The original homestead of the plaintiffs lies to the east of homestead of the defendants and to the south of the path No. 1 beyond the junction of this path with path No. 2. To the south of the homestead and other lands of Akbar Ali lies the homestead of the defendants and their other lands. To the west of this homestead of Akbar Ali lies a mosque on a considerably big area and the tank attached to the mosque lying to its north too, as is represented in the map, is of considerable size. The purchase by the plaintiff of the homestead land of Akbar Ali was in Jaistha, 1361 B. S. According to the plaintiffs, they lived in the said homestead of Akbar Ali for about a year after their purchase and used pathway No.1 which, according to them, is the only way for coming out of the homestead of Akbar Ali and others. Their further case has been that the defendants made an abortive attempt to purchase the homestead land of Akbar Ali and having failed they have put up a tin shed and a haystack across path No. 1 just below stations Nos. 5 where it runs directly to the south and have also put up certain other obstacles on the same pathway between station No. 5 and 3. This station No. 3 is the junction of path No. 2 and path No. 1. Being so obstructed by the defendants in their use of the path Nos. 1 and 2, which was in the use of Akbar Ali and his brothers for a long time and to whose interest the plaintiffs have succeeded by purchase, the plaintiffs filed the present suit for a declaration of their right of way over path No. 1 on the basis of immemorial user, easement of necessity and lost and implied grant and prescription. They have also prayed for an injunction against the defendants to remove the obstacles placed by them on the pathway and to refrain from putting up any obstacle whatever in future.
4. The defendants contested the suit by filing a joint written statement. The defendants have contended that the suit is barred by limitation; that the suit is bad for defect of parties; that the plaintiffs or their predecessor‑in‑interest have no right of pathway over the disputed pathway; that the "Gha" and "Uma" marked place at the pathway No. 1 (which lies between stations Nos. 5 and 8) is the inner and outer yard of the defendants Nos. 1 and 2 where their womenfolk thrash and boil paddy and that the tin shed is in existence for a long time. With regard to the claim of the plaintiffs of a right of way over path No. 2, the defendants have stated in their written statement that the plaintiffs or other persons have no right over pathway No. 2 which is a private pathway of the defendants and is used by them exclusively. They have further stated that Akbar Ali and his other co‑sharers used to go to the mosque by the path lying to the east of the mosque and used to go to the Gopath in the south by pathway No. 3 that the plaintiffs are trying to make a pathway over the lands of the defendants for cutting short the distance between their original homestead and the newly purchased one from Akbar Ali.
5. The learned Munsif dismissed the suit of the plaintiffs, holding that the land over which pathway No. 1 runs between station No. 5 and No. 8 is the inner courtyard of the defendants and that there was alternative way out for Akbar Ali from his homestead and as such no case of easement of necessity has been made out by the plaintiffs; that the plaintiffs having not made out a case of right of way "as of right" they have not established their case in regard to the path No. 1 between stations 5 and 6 where path No. 2 connects it; that even if Akbar Ali used those two routes it was not because he did so as of right' but because the defendants permitted him to do so as Akbar Ali and the defendants are the descendants of common ancestors and there was no cause for objection by the women‑folk of the defendants' household against Akbar Ali and his brothers' passing through their inner courtyard as they were related to them, for making a short‑cut to path No. 3 or to path No. 2 on the north‑east.
6. The plaintiffs preferred an appeal against the said decision of the learned Munsif and the learned Subordinate Judge has, in his judgment, dealt with the prescriptive right of the plaintiffs to use path No. 1 between stations 5 and 3 for an approach to path No. 2 alleged to have been acquired by them as successors to the right, title and interest of Akbar Ali who is said to have used the same for more than 20 years. The learned Subordinate Judge did not disturb the findings of the learned Munsif in respect of either the land between stations 5 and 8 of path No. 1 to be the inner courtyard of the defendants, or in respect of easement of necessity claimed by the plaintiffs. He has not also disturbed the finding of the learned Munsif to the effect that the user of pathway to both directions by Akbar Ali and his brothers over the court‑yard of the defendants was a permissive one because of the relationship between Akbar Ali and the defendants. He, therefore, decreed the suit of the plaintiffs partially only in respect of the right of way over path No. 1 between stations Nos. 3 and 5.
7. The defendants being aggrieved by the said decision of the learned Court of appeal below have preferred the present appeal and the plaintiffs have preferred a cross appeal in respect of the dismissal of their suit with regard to the right of way; they claimed over path No. 1 between stations Nos. 5 and 8.
8. Mr. Ali, the learned Advocate for the appellant, has shim explained to me the map prepared by the Pleader‑Commissioner. He has also taken me through the judgments of the Courts below and the report of the Pleader‑Commissioner.
9. From a reading of the report of the Pleader‑Commis sioner, it is clear that there is no path existing between stations 5 and 7 in path No. 1. There is only a track mark. This track lies on the lands of the defendants on two sides of which stand their residential huts. The time of constructor of the tin shed standing right across this track just below station No. 5 could not be ascertained by him, Similarly he has found that there is no path between stations 5 and 4 but there is some sort of a track of less than three feet in width leading out of the homestead of the defendants. The Pleader‑Commis sioner has further found that the claimed pathway between stations 5 and 7 runs over the inner court‑yard of the defendants. This fact has also been, admitted by the witnesses of the plaintiffs It is further found from the map that the lands to the north of station 412 to station 3 is a homestead of the defendants which is not now used by them for living purpose.
10. In support of the appeal of the defendants Mr. Ali, the learned Advocate, has contended that in view of the fact that the learned Court of appeal below has not disturbed the findings of the trial Court with regard to the alternative pathway available to the plaintiffs to come out of their newly‑purchased house, he has misconceived the law of right of easement of necessity by granting the relief to the plaintiffs for using the pathway between stations Nos. 5 and 3. This argument Mr. Al: places firstly on the case made out by the plaintiffs themselves in their pleadings. He has read out the plaint to me and, according to him, although in the beginning of the plaint the plaintiffs have talked of immemorial user, easement of necessity and lost and implied grant and prescription, the case they made out at the trial is pure and simple of easement of necessity. I think, Mr. Ali is justified in saying that the plaintiffs have made out a case of easement of necessity only. As I have already observed, the learned Munsif dismissed the suit of the plaintiffs and he found that the plaintiffs utterly failed to establish a case of easement of necessity and the said finding has not been, in any way, disturbed by the learned lower Appellate Court. The learned lower Appellate Court formulated the following two points for a decision of the appeal filed before him: --‑
"(1) Whether the plaintiffs have their alleged right of way over the suit land
(2) Whether the plaintiffs are entitled to a removal of obstruc tions, and injunction as prayed for "
11. He has dealt with these two points together and as is apparent from the first portion of the judgment, he restricted himself to the question whether the plaintiffs have acquired any right in the suit land by prescription only. It is contended by Mr. Ali; that the conclusion arrived at by the learned Judge that Akbar Ali had acquired a right by prescription is leased on no evidence but on presumption. The learned Judge found that there was no reason for the pathway to stop abruptly at station No. 4 and from this he has concluded that there is the existence of the pathway and that pathway must lead right up to station No. 5. The existence of a track on the lands of the defendants which lies more or less within the yards of their homestead does not necessarily lead to the conclusion of the existence of a pathway for the use of the public or the neighbours. The members of the household of the defendants do also come out by the north‑east of their residence to go to the river Borak via path No. 2 and as such the existence of a track between stations 5 and 3 is not an impossibility. That does not mean that it is a pathway for the use of the villagers. The finding of the Court of appeal below that the alleged pathway between stations 4 and 5 does not pass over the homestead of the defendants is also not correct, as it is clear and apparent from the record (the map) that the entire land both on the north and south of the alleged pathway belongs to the defendants and is their homestead lands.
12. In regard to the error in law committed by the learned Court of appeal below Mr. Ali submitted that the learned Subordinate Judge on a misconception of the law of prescrip tion, that mere user for more than 20 years, without an assertion of the claim "as of right" confers a prescriptive right to the dominant owner, has arrived at a wrong conclusion. The prescriptive right, Mr. Ali submits, must accrue to the person claiming it only if and when he has "as of right" by asserting the same against the servant owner with notice to him enjoyed the same for more than 20 years. Mr. Ali has further submitted that the facts and circumstances of each case have to be considered in their entirety taking note of the situation of the land, the relationship between the parties, the nature of user and the active knowledge of both the parties concerned in coming to a conclusion with regard to a prescriptive right that may accrue to a party claiming it. In the present case, according to Mr. Ali, if even Akbar Ali was allowed to pass over the court‑yards of the defendants, which the plaintiffs now claim as a portion of path No. 1 between stations Nos. 5 and 8 and the portion of the same path between stations Nos. 5 and 3 it was a permissive user by Akbar Ali, the reasons for which are not far to seek. It is in evidence, as is rightly pointed out by Mr. Ali, that Akbar Ali is a relation of the defendants and they had a common ancestor and the two houses were adjacent to each other and as such the defendants did not mind the user of the court‑yards of their homestead by a relation from whom the womenfolk would not observe purdah. This user by Akbar Ali can, in no way, be interpreted except as a permissive one, if entire facts and circumstances of the case are taken into consideration.
13. In answer to the cross‑appeal, preferred by the plaintiffs, Mr. Ali has submitted, in short, that the decision with regard to the claim of the plaintiffs for a right of way between stations 5 and 8 having been dismissed by the Courts below upon findings of fact this Court sitting in second appeal should not interfere with the said concurrent findings. Mr. Ali has further submitted that even apart from‑ the question of concurrent findings of fact, it is evident and clear from the facts and circumstances of the case that the judgment of the Courts below on this point is unassailable. It is established from the facts found that there is alternative way to come out of Akbar Ali's house: (now plaintiffs' new house) other than by path No. 1. The northern boundary of Akbar Ali's land abuts on the Gopath running along the south bank of the river Borak. There is, therefore, no difficulty for the plaintiffs to go out either to the mosque or to path No. 3 from their new house and lands surrounding the same by Gopath via the path running south which meets path No. 3 at the south‑west corner of the mosque. Only because the plaintiffs might have to walk a few yards more than what they have to do, if they were allowed to pass through the inner yard of the defendants they cannot claim an easement of necessity in respect of the portion of the alleged path between stations 5 and 8.
14. Mr. Mahmud Hussain, the learned Advocate for the respondents, in support of his cross appeal, has contended that in the absence of any denial in the written statement or any question put to Akbar Ali by the defendants as to user of Akbar Ali as a permissive one, the finding of the Courts below that Akbar Ali was in permissive use of the portion of path No. I between stations 5 and 8, as a relation of the defendants, cannot be sustained. I must at once say that I cannot agree with this contention of Mr. Hussain. It is settled now that the plaintiffs must themselves establish all the facts necessary to make a case of easement of necessity and they cannot even suggest that the defendants must prove that the user was permissive until they themselves have established their case. In the present case, the plaintiffs have signally failed to establish a case of easement of necessity and the finding of the Courts below on this point being a finding of fact, I do not think 1 need disturb the same and I am of the clear opinion that there is no reason either for me to interfere with this finding.
15. With regard to the appeal of the appellants in respect of the portion of the alleged pathway which lies between stations 5 and 3, his argument has been that the Court of appeal below having found on the independent testimony of P. W. 3 Rousan Ali and the testimony of Akbar Ali that Akbar Ali has been using the pathway for a time which is more than 20 years, he has acquired the prescriptive right over the said portion of the pathway. I do not agree with this contention of Mr. Hussain either, as I have already indicated that a mere user for a number, of years does not confer a right by prescription to a person claiming such a right unless the same has been exercised as of right.
16. I shall presently deal with the cases on the point some of which have been cited before me by Mr. Ali. Before that I would like to deal with another branch of Mr. Husain's argument which is that Easement Act (Act V of 1892), having not been made applicable to this Province, the principles of English Law should govern the eases on easement, for this he half heartedly relied on a decision of this Court in the case of Aghore Bandhu Guha and others v. Makul Kumar Roy and others (P L D 1959 Dacca 891).
17. Mr. Ali has read out the entire case to me and has made his comments thereon. I entirely agree with him that the above cited case is not, in any way, applicable to the facts of the present case. That case was more or less on the principle enunciated in section 13 of the Act V of 1892. Mr. Ali has submitted that the principle that should govern the present case is the principle as laid down in para. 3 of section 15 of the Easement Act. Apart from this the case reported in P L D 1959 Dacca 891 is not applicable to the facts of the present case. I am of the opinion that the principles of English Law of easement cannot be made applicable to the cases in our country and I am supported in my this view by a number of decisions of the High Courts of India, which I shall presently refer to.
18. Mr. Ali has pointed out a decision of the Privy Council on this point (the case of Bhola Nath Nundi and others v. The Midnapore Zemindary Company (8 C W N 425) i.e., as to whether the principle of English Law applies to the cases in India. Their Lordships of the Privy Council in matters of application of principles of English Law to the cases in India have observed at page 433 as follows :‑
"Unfortunately, however, both in the Munsif's Court, and in the Court of the Subordinate Judge, the question was overlaid, and in some measure obscured, by copious references to English authorities; and by the application of principles or doctrines, more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions. The result is that, although the decrees appear to be justified by the main facts, which both the lower Courts held to be established, it is impossible to say that the judgment delivered are entirely satisfactorily."
19. This was a case from the Province of undivided Bengal and the observations of their Lordships quoted above are of general nature relating to the application of the principles of English Law to the cases in India.
20. In the conditions obtaining in the rural areas of our country if in deciding cases of easement, "principles or doctrines, more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions are applied, then very serious and complicated situations will be created, as, I am sure, every villager will have to put up fances or boundary walls to prevent his neighbours and relations or co‑sharers from passing over any part of their lands. In our country, almost in every case, neighbours and villagers walk over the lands of other neighbours and villagers to cut short their way. They do so to go to the mosque or to fetch water from the tanks and wells in neighbours houses in some cases situated even in the inner court‑yards.
User of a private track or path of a neighbour lying on his lands and in some cases user of his yards by the co‑villagers to fetch water or to go to mosque to cut short the route is common in our country. If, therefore, the mere user for a number of years by neighbours or relations of a particular part of the lands of the servient owner confers the prescriptive right of way to the dominant owner then I think, hardly, a house will be left in the villages of East Pakistan over which some one or other will not be in a position to claim a prescriptive right of way. Such is not the condition in England and as such I feel, the principles of English Law cannot be made applicable to the cases of easement in our country and the Courts in India too, as I have already indicated, have held so.
21. Now, to deal with the cases some of which have been cited by Mr. Ali in support of his contention already discussed above. I may refer first to the case of Shaikh Khoda Buksh v. Shaikh Tajuddin (8 C W N 359) (this decision has been approved by another Bench of this Court in an earlier decision to which I shall make reference shortly). This case was also on easement and the question of application of English rule that the presumption from user should be that it is "as of right" came up for consideration and it was observed as follows :‑
"The learned Subordinate Judge in his judgment nowhere finds affirmatively that the user was as of right ; nor does he take any notice of the Munsif's observation on the point.
The learned Vakil for the plaintiff‑respondent contends that whenever user is proved, the presumption is that it is as of right until the contrary is shown; and in support of this contention he relies upon a passage to be found at page 204 of the seventh edition of Gale's Work on Easement. That no doubt is good authority, but it is doubtful whether it would be safe to follow the rule there laid down, without qualification in this country. In the first place section 26 of the Limitation Act upon which the right claimed is based, expressly requires that the user must be as of right, and if that is so, it is for the plaintiff to show that this requirement of the law has been satisfied.
Then in the second place, having regard to the habits of the people of this country, I do not think that it would be right to draw the same inference from mere user that would be proper and legitimate in a case arising in England. The question is always a question of fact, and the propriety of the rule that the presumption from user should be that it is as of right, must depend upon the circumstances not only of each particular case but also of each particular country, regard being had to the habits of the people of that country. As has been observed in an unreported case referred to in Babu Upendra Nath Mitter's book on the Law of Limitation and Prescription, third edition, page 424 (foot‑note): "The nature and character of the servient land, friendship or relationship between servient and dominant owners, and the circumstances under which the user had taken place, may induce the Court to hold that the enjoyment was not as of right' although there is no direct proof that the enjoyment was had with the permis sion of the servient owner."
22. In the case under my consideration, as I have indicated earlier, nowhere the plaintiffs or their witnesses asserted that Akbar Ali was using the pathway as of right and in that view of the matter I entirely agree with the observations of Banarjee, J., in the above quoted case, as the facts of that case are akin to the facts of the present one.
23. The next case in point of time cited by Mr. Ali is that of Meser Mullick v. Hafizuddin Mullick and others (13 C L J 316). In this case the same point as raised by Mr. Hussain that in the absence of any evidence from the side of the defendants that the user by a dominant owner was a permissive one, it must be held that such right of way as of right, was raised and answered in the negative. In this case also the learned Judge held that the user must be as of right and it is not the responsibility of the defen dants that is, the servent owners to prove that the user was permissive when the dominant owner has failed to establish his user to be as of right with all the ingredients necessary for making out such a case.
24. The next case cited by Mr. Ali is that of Baroda Kant Karmakar v. Sreenath Sil (18 I C 211) a decision of the Calcutta High Court. Therein also the question of application of the principles of English Law came up for consideration and also section 26 of the Limitation Act, and their Lordships observed as follows:
"On behalf of the appellants, it has been argued that the learned Subordinate Judge has made two mistakes of law. In the first place, it is suggested that he ought to have presumed, as soon as he found that there had been actual user, that the user was of right. We are unable to yield to this contention. As pointed out by Mr. Justice Banerjee in Shaikh Khoda Buksh v. Shaikh Tajuddin whatever may be the law in England, it is certain that under section 26 of the Indian Limitation Act, which is the law in force in India, the right which the appellants claim must have been used as of right and it was for the plaintiffs who sought to establish such a right, to show that this requirement of the law had been satisfied.
25. The next point that was urged before their Lordships in that case was that the learned Subordinate Judge committed a mistake in holding that the user by the dominant owner in that case was a permissive one and to that the reply of their Lordships had been in the following terms: ---‑
"The remaining contention of the appellant is that the learned Subordinate Judge has misdirected himself in certain passages in his judgment: The path claimed' writs the learned Subordinate Judge lies through the court‑yard of the defendants 'bari' close by their dwelling house and kitchen and not far off from a tank used by the female members of their families. In my opinion, the user of such path should always be presumed to be permissive until the contrary is proved'. No doubt, this dictum is rather widely expressed but it seems to us that the learned Subordinate Judge did not intend to lay down any general rule, but that all he meant was that, where the facts are such as are found in this case, the inference prima facie seems to him to be that the user was permissive and not as of right. And we cannot say that this finding of fact is opposed to any principle of law."
26. The facts of that case are almost similar to the facts and the case under my consideration and the principle laid down in that case is applicable to the present case.
27. Lastly, I shall refer to a decision of this Court in the case of Abdul Hafiz and others v. Mafizuddin and others ((1955) 7 D L R 577). In that case, Ibrahim, J., observed as follows :‑
"A prescriptive right of way cannot be acquired by mere enjoyment for the statutory period. The enjoyment must be as of right, i.e., not attributable to permission implied or express. The mere fact that one person walks over the land of another, does not raise any presumption that he has a right to do so. Numerous people pass over the lands of their; neighbours, friends and relations with their tacit permission. Suctnl user, though continuous, and long, is seldom understood as being in assertion of any right. In a suit for prescriptive right of way the plaintiffs must show that his user was such as was sufficient to put the servient owners on notice that the enjoy ment was not attributable to his tact permission or favour. The learned Subordinate Judge does not refer to any evidence to justify, his finding that the user was "as of right". In England, if long user is proved, it is presumed that the enjoy ment was as of right. It would be unsafe to draw such an inference from user in this country, vide the case of Shaikh Khoda Baksh v. Shaikh Tajuddin and others . . . Enjoyment" "as of right" as distinguished from "of right" means, as if the dominant owner had the right to the enjoyment. Whether the enjoyment was as of right or attributable to tacit permission, may be difficult to determine in many cases; but, however, great the difficulty is, it cannot be resolved by drawing a presumption in favour of the dominant owner, on whom lies the burden to establish his right. Whether the enjoyment was had as to right, it to be inferred from the circumstances of each particular case, and it is the duty of the dominant owner to prove facts which will justify such an inference. To entitle him to such an inference, he must show that the acts of actual user were such as to put the servant owner regarded as a reasonable men on notice that a right in the nature of an easement was being asserted or claimed over his property."
28. I myself have taken the same view in the case of Mst. Joharenessa and another v. Babar Ali and others in Second Appeal No. 619 of 1959, (unreported) disposed of by me only a month back.
29. Mr. Ali also pointed out to me a note under the heading pleadings after the Prescription Act, 1832' occurring at page 374 in Gale on Easements 13th edition, which runs as follows :‑
"In the case of actions brought after the Prescription Act, 1832, modifications in pleading were introduced by section 5 of the Act (which is set out at length, ante, p. 137). Under this section it is necessary to allege enjoyment "as of right" in claiming a prescriptive right of way, but not in claiming a prescriptive right to light; enjoyment as of right meaning an enjoyment nee vi nee clam. nec precario".
30. From this note, it is clear that even in England in a case of prescriptive right of way the expression "as of right" must affirmatively be asserted by the person claiming the right.
31. In the present case no such assertion has been made as I have already observed before, by the plaintiffs either in the pleadings or while giving evidence in the box. In that view of the matter, if even Akbar had used the alleged pathway lying between stations 5 and 3 for more than 20 years, he did not acquire any prescriptive right of way over the same and as such his successors‑in‑interest, the plaintiff‑respondents in the appeal and appellants in the cross‑appeal, have also not acquired such a right.
32. In the result, therefore, I allow this appeal, set aside the judgment and decree passed by the learned Court of Appeal below and confirm that of the learned Munsif. The cross‑appeal filed by the plaintiffs is dismissed. Defendant No. 2 appellant shall be entitled to the costs of this appeal as well as to those of the Courts below.
S. B./A. H.
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