G.K. Misra, J.
1. The suit was one under Order 1, Rule 8 C. P. C. for a declaration that the plaintiff and the villagers have the customary right of user of plot No. 432 as a rasta, for permanent injunction and for removal of the encroachment on 1 1/2 decimals of land on the eastern portion of that plot. As the point argued in the Second Appeal lies in a narrow compass, it would be sufficient only to state the relevant facts. It is the common case of parties that plot No. 432 has been recorded in the current settlement of the year 1930 as a tank in the names of the predecessors of defendants 1 to 8. It touches the Sarbasadharana rasta in plot No. 433 to the east and another Sarbasadharana rasta in plot No. 373 to the west. The Mahadeb Temple is situate on plot No. 430 which lies to the north of the eastern end of plot No. 432. The temple of Budhibasulei Thakurani is situate on plot No. 421 lying to the south of the western end of plot No. 432 Plot No. 432 starts from the Sarbasadharana rasta in plot No. 373 near plot No. 421. Plaintiffs case is that the villagers have a customary right of way on plot No. 432 whereupon they traverse in order to have Darshan in the temple of Budhibasulei Thakurani and the Mahadeb and in order to pass from Sarbasadharana rasta on plot No. 373 to the Sarabasadharana rasta on plot No. 433. Sometimes in 1959 defendants 1 to 8 put obstruction on plot No. 432 by putting a fence over 1 1/2 decimals of land on the esatern portion of that plot obstructing the right of passage.
Defendants 1 to 8 contested the suit stating that plot No. 432 was recorded as a tank and was used as such and that it was not a rasta over which plaintiff and the villagers have a customary right of user.
2. The learned trial court held that the plaintiff had a customary right of user of the suit land as a rasta which was not a tank but was used as a passage. It decreed the plaintiffs suit and directed defendants 1 to 8 to remove the encroachment on the eastern portion of the suit plot (1 1/2 decimals) which was effected after the institution of the suit.
The decretal order of the learned lower appellate court may be quoted in extenso:
'The plaintiffs shall exercise a customary right of passage on the entire width of the suit C. S. plot No. 432 just opposite C. S. plot No. 421 in which the Thakurani mandir is situate and they shall have a right of passage on 5 links width of the suit land from the point where plot No. 421 ends, while proceeding to the eastern direction and the said 6 links shall run parallel to the southern edges of plots 422, 427, 428 and 430 so that the remaining southern extent of plot No. 432 will be available for the private use of defendants 1 to 8. Plaintiffs are at liberty to get this land demarcated on the locality by a pleader commissioner by applying to the trying court. In respect of this defined passage of 5 links, towards the northern side of the suit plot 432the defendants 1 to 8 are restrained by an injunction to interfere with the user of the plaintiffs and in respect of the remaining extent of the plot 432 the defendants 1 to 8 are at liberty to utilise the same for their private use in any manner they like. The encroachment if any made by the defendants 1 to 8 in respect of 5 links wide passage set apart for the use of the villagers shall be removed by the defendants 1 to 8 within a month hence failing which the plaintiffs may get the same removed through Court at the execution stage.'
Thus the customary right of way claimed by the plaintiff was concurrently decreed by the courts below, but the width of the passage was reduced by the lower appellate court as indicated in his order. It is the common case of the parties that the disputed plot No. 432 is .07 acre in area. Its length is about 200 cubits and the breadth is 4 to 5 cubits varying from place to place. Defendants 1 to 8 filed no Second Appeal or cross-objection against the confirming judgment declaring the customary right of way of the plaintiff and the villagers. That portion of the lower appellate court's decree declaring customary right of way on the portion indicated in its judgment thus stands final and is not assailable in Second Appeal. The plaintiff has filed the Second Appeal against that portion of the lower appellate court's decree which negatives his claim by confining it to a demarcated portion of the suit land
3. The only question raised by Mr. Mohanty is that in the absence of any assertion on the part of the contesting defendants that the suit rasta was being used in a restricted manner, the judgment of the lower appellate court in defining it is contrary to law. In the written statement the contesting defendants averred that the plaintiff had no customary right of way on plot No. 432. It was not their case that in fact plaintiff had a customary right of way and that it had extended to the whole of the rasta adjoining plot No. 421 and was confined to 5 links in the northern portion of plot No. 432, Doubtless when customary right of way is claimed, the onus is on the plaintiff to prove that the custom was ancient, invariable, certain and reasonable. Plaintiff so pleaded. It was not necessary for him to plead evidence of user.
During the trial plaintiff and his witnesses stated that the entire plot No. 432 was being used as a rasta in order to pass from Sarbasadharana rasta in plot No. 373 in the west to the Sarbasadharana rasta in plot No. 433 in the east and to visit Budhibasulei Thakurani in the west and the Mahadeb Temple in the east. The width of plot No. 432 is 4 to 6 cubits varying from place to place. To carry a Biman of the Chalanti Pratima (Alter ego) during the festive occasion when large crowds gather, user of a piece of land of the width of 4 to 5 cubits is quite reasonable. The learned Judge recorded a finding on the analysis of the evidence that such material existed, but he discarded the same as there was no pleading in the plaint referring to the factumof carrying of Biman during festive occasions. It is elementary that only material facts and not evidence are to be pleaded. Plaintiff has satisfactorily established that the customary right of user of the entire disputed rasta was reasonable.
So far as other ingredients of the customary right of user are concerned, the learned Subordinate Judge held in favour of the plaintiff and accordingly passed a decree. He restricted the right to the whole of the rasta near plot No. 421 and to 5 links at other places on the sole ground that granting such a relief would not be reasonable. The learned Judge misconceived the law Whether a customary right claimed is reasonable or not would depend on the facts and circumstances of each case. No hard and fast rule can be laid down, Here plot No. 432 is only 4 to 5 cubits wide. The mere fact that if the whole of the disputed land is allowed to be used as a rasta it would result in complete extinction of the right of the owners would not by itself make the user unreasonable. The conception of law on the basis of which plaintiff's right of user was restricted is erroneous. It is also difficult to appreciate as to on what reasoning the learned Judge allowed the user of the entire width of plot No. 432 near plot No. 421 and why he restricted it at other places.
4. The contesting defendants filed appeal before the District Judge against the trial court's decree which was wholly adverse to them. In the grounds of appeal before that court a point was not taken that the user of the rasta must be confined in the manner indicated by the learned Judge The learned lower appellate court's decree restricting the right was not on the basis of any pleading in the written statement or in the memorandum of appeal.
5. Mr. Swain contends that even though the defendants did not aver that plaintiff's customary right of user was confined to a particular portion of the rasta, it is open to the court to delineate the way in a particular manner as initially the onus is on the plaintiff to prove that the customary right of user is reasonable. The proposition so widely stated isnot strictly accurate. Doubtless the onus is on the plaintiff to prove that the customary right of user claimed is reasonable. As I have already discussed, plaintiff has satisfactorily established that the claim of customary right of way in respect of 4 to 5 cubits of rasta is reasonable. The defendants on the other hand failed to plead and prove that such user is unreasonable. Mr. Swain placed reliance on AIR 1921 All 206 (2), Lal Bahadur v. Rameswar Dayal, AIR 1925 Nag 168, Wasudeo v. Shankar, AIR 1931 Mad 213, Ramaswamy Iyer v. Secretary of State, and AIR 1950 Patna 432 Murli Prasad v. Sheo Kishore Narain in support of his contention that the plaintiff is to prove that the right so claimed is reasonable, and that the court can demarcate the land on which the rights to be exercised. The decisions lay down the correct law on the facts and circumstances of those oases.
For instance, AIR 1921 All 206 (2) the plaintiffs claimed a declaration that they along with other inhabitants of a village had a right to takes their cattle to a certain grazing ground through a jungle of another village. Their Lordships rightly rejected the right of way being spread over the entire jungle. The following passage was approved as giving the correct statement of law.
'The Judge however says that the plaintiff's cows have been for very many years driven by him over these lands and that this must be considered to have given him a right of way which cannot now be interfered with. If they have driven the cattle over the lands generally, that is to say, not by any particular path but straggling promiscuously over the lands, which is the right claimed by the plaintiff, be held to give the plaintiff a right in all times to come so to drive his cattle, it would be interfering with the lands to such an extent as to make it impossible that they should ever be used for any useful purpose. A right of way or other easement must not be so large as to extinguish or destroy all the ordinary uses of the servient property and in our opinion no length of the would have given the plaintiff such a right as he claims, namely, a straggling right to the promiscuous use of the-whole property for the purpose of driving his cattle over it.'
No exception can be taken to this principle. Such a claim could not have been allowed as the right of way was claimed over the entire jungle. To allow such a right would amount to extinction of right of the owner in the entire jungle though for the passing of cattle the right so spread over was not necessary and as such not reasonable.
As already stated, what is reasonable would vary in the facts and circumstances of each case. Take for instance, a right of way is claimed in respect of a path with a width of 1 foot which only a man can pass on foot. At the particular locality the defendant has only that much of land. If the plaintiff's right of way is declared, evidently the right, title and interest of the defendant in respect of the whole land would be extinguished. The defendant cannot put it to any other user. Can it be said on that ground that the right of way is unreasonable and must not be allowed? The answer would be in the negative.
In this case on the evidence the user of 4 to 5 cubits of rasta is quite reasonable. Such evidence cannot be discarded merely because it was not referred to in the plaint. The other decisions cited by Mr. Swain are similarly distinguishable on facts.
6. In the result, the appeal is allowed,the judgment of the lower appellate courtrejecting a part of the plaintiff's claim is setaside and the judgment of the trial courtrestored. In the circumstances, parties to beartheir own costs throughout.