1. This is an appeal by the plaintiffs agaisnt the dismissal of their suit by the lower appellate Court which reversed the decision of the trail Court decreeing the plaintiff's suit. The present suit was filed by the plaintiffs for establishing their right of way along the western dhura of field Survey No. 361 which belongs to the defendant-respondent. The plaintiffs are the recorded tenants of Khasra Nos. 290 and 360 in absolute occupancy right situated at mouza Mohapa, whereas the defendant is the absolute occupancy tenant of Khasra No. 361, in the same village, which adjoins plaintiffs filed Khasra No. 360. These fields admittedly belonged to the family of Tekades and members of the Tekades family seemed to have sold these fields as well as the other fields which belonged to them to strangers. On 30-1-1919 Gopal's branch of the Tekade family, according to the plaintiffs, sold fields Nos. 362 and 363 to one Amritrao. Then on 26-1-1930, field No. 361 was sold by Dinkar's branch and Purushottam's branch of the Tekade family to two purchasers Ganpatrao and Abaji. This sale deed is Ex. P-24 on the record. One other field No. 289 belonging to these two branches of the Tekade family was not, however, sold. Now, the purchasers of field No. 361 sold the field to the present defendant on 12-1-1943 by Exhibit P-23 on the record. That is how defendant became the owner of field No. 361. On 18-1-1946 the plaintiffs appellants purchased fields Nos. 290 and 360 from Shankarrao and Anandrao Tekade by a sale deed which is Exhibit P-1 on the record. As a result, the plaintiffs came to be recorded as absolute occupancy tenants in respect of fields Nos. 290 and 360. It is the case of the plaintiffs that they have a right of way to their field No. 360 along the line CD in the plan of the village Mohpa, which would be along the western dhura of the field No. 361 belonging to the defendant. The plaintiffs claimed this right of way by prescription and alternatively as an easement of necessity. It was alleged by the plaintiffs that on 28-8-1946 the plaintiffs were obstructed by the defendant in the enjoyment of this right of way. That is why they filed the present suit on 12-8-1947 for an injunction restraining the defendant from obstructing the plaintiffs' right of way for the purpose of passage of their men, cattle and carts along CD and also for damages to the extent of Rs. 400/-.
2. The defendant resisted the plaintiff's suit on the ground that the plaintiffs had no such right of way as claimed by them. He denied also that the plaintiffs' user was for the statutory period and was as of right. He also denied that plaintiffs could use the way on their alternative plea of easement of necessity.
3. The trial Court decreed the plaintiffs' suit holding that plaintiffs had proved their continuous, open and uninterrupted user for a period of more than twenty years ending within two years of the suit and that they had also established their right to use the way as an easement of necessity. The lower appellate Court reversed both the findings of the trial Court. It held that plaintiffs had not succeeded in establishing the acquisition of the right of way by prescription and it also held that the evidence on the record was not sufficient to establish plaintiffs' claim to the suit right of way as an easement of necessity. Accordingly, the decree of the trial Court was reversed and plaintiffs' suit was dismissed. That is why the plaintiffs have come to this Court in second appeal.
4. Now, Mr. Bobde, the learned Advocate appearing for the appearing for the appellants, has fairly conceded that he is not challenging the correctness of the appellate Court's finding as to easement of necessity. He says that he is not in a position to challenge that finding that the evidence was not sufficient to establish the plaintiffs' right of way as an easement of necessity as involving any error of law. But he strenuously contends that the lower appellate Court's view that the plaintiffs had not established the right of way alleged by them in the plaint by prescription is erroneous in law. He challenges the correctness of that finding chiefly on two grounds. He says in the first instance that the lower appellate Court has not considered at all the entries in the record-of-rights Exhibits P-18, P-19 and P-20 which supported the plaintiff's case that even prior to 1913 plaintiffs and their predecessors-in-title were using the right of way as of right. Mr. Bobde contends that the failure of the lower appellate Court to draw the necessary statutory presumption in regard to these entries in the record of rights is a serious infirmity which would entitle me to go into evidence in second appeal. Mr. Bobde also contends that the lower appellate Court has wrongly refused to look t some important oral evidence in the case on the ground that plaintiffs had not pleaded that there was any partition in the Tekade family, and Mr. Bobde says that plaintiffs having asserted the user of the alleged right of way for a long period as of right and having led evidence to show that there was division in the Tekade family, it was wrong on the part of the lower appellate Courtto refuse to look at that evidence on the ground that there was no express plea regarding any such partition in the plaint. Then, the second argument of Mr. Bobde is that since there is abundant evidence on the record to show that plaintiffs had been using the right of way alleged by them over a number of years, the lower appellate Court failed to draw a presumption in favour of the plaintiffs that the user of that way by the plaintiffs was as of right. On both these grounds Mr. Bobde contends that the lower appellate Court has erred in law and has not properly appreciated the evidence and not drawn proper presumptions and therefore, this Court would be entitled to interfere with the finding of fact arrived at by that Court.
5. As regards Exhibits P-18, P-19 and P-20, they are certified copies of extracts from khasra from Settlement record of the year 1912-13. Under Section 72 of the C.P. Land Revenue Act of 1881, the Settlement Officer has to ascertain, and record fro each Mahal, the status of all tenants occupying land therein, the lands respectively held by them, the conditions on which they respectively hold such lands, and the rents, if any, payable by them respectively. Under Section 79, the Settlement Officer has to prepare for every Mahal, or, if he thinks fit, for any group of neighbouring mahals, a record-of-rights, and under Section 82 when the record-of-rights is duly made and attested, all entries therein shall be presumed to be correct until the contrary is shown.
6. Now, Mr. Bobde contends that these record-of-rights entries have not been referred to at all by the lower appellate Court and consequently no statutory presumption was drawn from the entries in those records, and therefore, the findings of the lower appellate Court cannot be accepted. In support of his argument Mr.Bobde has relied on the Privy Council case in Shankarrao Dagadujirao v. Shambhu Nathu Patil where it has been observe that where the existence of record-of-rights was not appreciated by the District Judge and where he has not given any effect to the statutory presumption, questions of fact would be open to the High Court in second appeal. In my opinion, this argument of Mr. Bobde is valid, and as the judgment of the lower appellate Court has disclosed to some extent this infirmity, I allowed Mr. Bobde to go into the evidence in this case, both oral as well as documentary, in order to see whether the challenge to the correctness of the finding of the lower appellate Court was justified or not.
7. Before I go, however, into consideration of the evidence, I will deal with the other point of law which has been raised by Mr. Bobde. According to him, as soon as plaintiff proves uninterrupted user for a long course of years of the right of way alleged by him. a presumption must be drawn in favour of the plaintiff that the user of the right of way was as of right as required by Section 15 of the Easements Act. In support of this contention, Mr. Bobde has relied on a decision of the Nagpur High Court in Rajlu Naidu v. M.E.R. Malak ILR (SIC) Nag 580 : AIR 1939 Nag 197 , where Mr.(SIC) Niyogi held that long and open user of property gives rise to a presumption that the user is as(SIC) of right and is sufficient to discharge the onus which lies on the claimant of an easement that his use was as of right. In that case, Mr. Justice Niyogi after examining the case law on the point preferred to follow the line of authorities of the Court of the Judicial Commissioner, Central Provinces, which had consistently held that long user itself gave rise to a presumption of right, which view was followed in the Nagpur High Court in Nathuram v. kalu 20 Nag LJ 12 : AIR 1989 Nag 69 , where it was held that though it was no doubt incumbent on the plaintiff to establish that his user was as of right, the law presumes that it is as of right, that is to say, it has a lawful origin, if the plaintiff proves open and notorious user. It is, however, worth noting that i the case of Rajlu Naidu v. M.E.R. Malak (A-1), Mr. Justice Niyogi was prepared to raise the presumption that the user of the way by the claimant was as of right, owing to the existence of circumstances which justified the raising of such presumption. In that case, the land on which the defendant was exercising his right of way had been admittedly set apart as a passage, and the relations between the parties were not such as to indicate that the defendant's user was attributable to leave or license. That case therefore, can be distinguished from the facts of the present case.
8. Then Mr. Bobde referred to an observation of Sir John Beaumont in Rau v. Tukaram 41 Bom LR 168 : AIR 1939 Bom 149 , that where a party shows that for the statutory period he has openly exercised certain rights which are in themselves sufficient to establish an easement, prima facie he is entitled to the easement, and it is not necessary to show that during the whole of the prescriptive period he was consciously asserting a right to an easement. That case is distinguishable on the facts and is not of any material assistance to the appellants in this case.
9. Mr. Bobde then relied on a decision of the Patna High Court in Nazir Hussain v. Aulad Haider AIR 1926 Pat 460 (D), where it was held that in order to establish a right of way it must be proved that the claimant has enjoyed it for the full period of twenty years and that he has done so as of right; but if it should be the case of the oppo ite party that the enjoyment was by violence or by stealth or by leave asked from time to time, it is for him to allege and establish that case. It is, however, worth noting that in this case Das J. expressed his concurrence with the view of Banerji j. in Shaikh Khoda Buksh v. Shaikh Tajuddin, 8 Cal WN 359 , that having regard to the habits of the people of this country, it would not be right to draw the same inference from mere user that would be proper and legitimate in a case arising in England. According to Banerji J., the question was always a question of fact and the propriety of the rule that the presumption form 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. Banerjee J. then quoted the observation in an unreported case referred to in Mitter's Law of Limitation that
'the nature and character of the servient land, the friendship or relationship between the servant 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 permission of the servient owner.'
A letter decision of the Patna High Court in Nasiruddin v. Deokali : AIR1929Pat124 , following the ruling of the Calcutta High Court in 8 Cal WN 359, held that if the owner of the dominant tenement has for a long period passed over the servient tenement it cannot be presumed that he did it from the beginning with a claim of right. The remarks of Banerjee J. in the Calcutta ruling were also referred to with approval in Ramchandra v. Hari, 31 Bom LR 120 : AIR 1929 Bom 144 , in which Mirza J. observed that in a country like India where the lands are usually unenclosed, before a right of easement could be declared to be established over them, the Courts must require strict proof that the plaintiff has satisfied the requirements of Section 15 of the Easements Act. In this case, Mr. Justice Baker following the ruling in Meser Mullick v. Hafizuddi Mullick 13 Cal LJ 316 also referred to the circumstances which the Court should consider in questions regarding a right of way such as the relations between the parties and the circumstances under which he user took place.
10. Mr. Bobde then referred me to Diwan v. Jagta ILR Lah 206 : AIR 1920 Lah 354 , in which the lower Courts had found that a road way was practically the only road by which the plaintiffs in that case could gain access to the well in which they were co-sharers, and that the road as well as the well were in existence for more than 20 years and that plaintiffs had been using the road for the purpose of going to the well, and it was on these findings that the Lahore High Court held that having regard to the habits of the people of this country the enjoyment of the road 'as of right' should be presumed. Mr. Bobde then referred to the case of Kunjammal v. Rathinam Pilla, ILR Mad 633 : AIR 1922 Mad 5 . In this case, the Court was concerned with the claim of the plaintiff that scavengers had access to a privy in his house through the doorway of the defendants and it was observed that rights of way into and through a private dwelling house were as highly valued as rights to water. Obviously permissive user in such cases would be by no means common, and a presumption from long user in such a case might be reasonably drawn. But, in my opinion, the principle of this case cannot be extended to every case of a right of way as Mr. Bobde wants me to do, so that, on plaintiffs leading evidence to prove uninterrupted user of a right of way for more than twenty years, the Court has straightaway to draw a presumption that the user was as of right. In my opinion, it is for the Court to consider whether a presumption could be reasonably drawn looking to the circumstances of each case, such as the nature and character of the servient land, the relation between the parties and the circumstances and the manner in which the user has taken place.
11-13. (His Lordship after discussing the evidence of the case and holding that the finding of the lower appellate Court that the plaintiff had failed to establish the right of way claimed by them by prescription was not erroneous either in law or fact proceeded to state). In that view of the matter, the appeal fails and the same will be dismissed with costs.
14. Appeal dismissed.