R.K. Das, J.
1. This is an appeal by defendants 1 to 7 against the reversing judgment of the Additional Subordinate Judge of Balasore, arising out of a suit for declaration of right of way and for restraining the defendants from putting obstruction on the same.
2. The material facts relating to the plaintiff's case are these : Plaintiff and defendants 8 and 9 own plot No. 2853 and have their homestead and residential house on the said plot. They are also the owners of plots Nos. 2780, 2783, 2784 and 2785 which are situate to the adjacent south of their aforesaid homestead. The suit plots, 2775 and 2773 are also adjacent plots which originally belonged to one Gopinath Naik and were purchased by the father of defendant No. 1 some 12 years prior to the institution of the suit. Another adjacent plot 2772 belonged to one Bana Naik. Father of defendant No. 1 purchased four decimals out of the said plot at the south-eastern corner from the widow of the original owner Bana Naik, rest of which was purchased by defendant No. 4.
Plot No. 2766 is a paddy land belonging to defendants Nos. 5 to 7. The public road standing on plot No. 2793 is to the contiguous south of this plot No. 2766. Defendants 1 to 3 own plot No. 2845 to the adjacent east of plot No. 2853 having their residential house on it. The plaintiff's case is that for their mutual convenience and to find out an outlet to the public road on 2793, the predecessers-in-interest of the plaintiff and defendants 8 and 9 on one hand and the father of defendant 1 and the predecessors in interest of defendants 2, 3, 5, 6 and the father of defendant 7 on the other, sometime in the year 1233 V. S. (corresponding to 1926) agreed to carve out a road of the width of 15 links over plots 2784, 2785, 2766, 2776, 2773 and 2772 starting from the homestead plot of the plaintiff and defendants 1 to 3 to the public road and this road being used by the plaintiff and defendants 8 and 9 for more than 20 years as of right and have thus acquired a right of way.
On account of strained relations between the parties, defendants 1 to 7 on 4-1-57 demolished the said road, removed earth from the same and threatened to enclose it by a fence. The plaintiff had therefore brought the present suit for declaration of his right of way and also for permanent injunction against the defendants restraining them from putting any obstruction on the said road and also for directing the defendants to reconstruct the road failing which to call upon the defendants to pay a sum of Rs. 100/- to the plaintiff towards the expenses of reconstructing the road.
3. Defendants 1 to 7 denied the agreement of 1926. According to them there was no such road over the alleged plots which were only paddy fields. There was a narrow ridge on the eastern side which was never used as a 'rasta' and as such the plaintiff had acquired no right of way over the same. They further contended that there was no necessity for the plaintiff to use any such passage for going to the public road on the south as the hometead of the plaintiff is connected with the public road by plot No. 2854 situated on the western side of his house. They did not however put forth any plea of permissive user.
4. The learned Munsif held that the plaintiff had failed to prove that there was any road over the disputed plots and he was passing over the same in accordance with the alleged agreement. He further held that assuming the plaintiff was passing on any such road, it must be presumed to be permissive user. For the latter proposition he relied upon a case reported in Lambodar Panda v. Ramesh Chandra Panda, 24 Cut LT 117 : (AIR 1958 Orissa 248). He thus dismissed the plaintiff's suit.
5. The learned appellate Court found the existence of a passage on the disputed plots for over thirty years and held that, 'the plaintiff in the present suit has proved the user as of right for the statutory period of 20 years.' At a later stage, however, he held that though there is no sufficient evidence about the agreement of 1926 still the right of way claimed by the plaintiff can be upheld on the doctrine of lost grant as there was sufficient evidence to prove the plaintiffs case of uninterrupted user of the suit road.
6. The main contention of Mr. G. G. Das, learned counsel for the appellant was that the plaintiff having made out a specific case based on an express grant, the appellate Court has committed an error of law in making out a new case for the plaintiff based upon the theory of lost grant and on this ground alone his decision was liable to be set aside.
7. There was some sort of a road leading from the house of the plaintiff to the public road on plot No. 2793 cannot be disputed in view of the specific finding of the learned appellate Court. The learned appellate Court examined the oral evidence on both sides and felt inclined to accept the evidence of the plaintiff. He also took into consideration Ext 1/C the Commissioner's map showing the disputed Rasta and Ex. A the report of the Commissioner who was also examined as D. W. 1 and thus came to the finding that the suit-Rasta was in existence for about thirty years and the plaintiff was using the. same. This finding cannot be said to be without any evidence.
The defence case was an absolute denial of the existence of the road. It was not their case that there was any such road and the plaintiff was using the same by mere permission or licence. I have already stated that the learned Munsif relying on the case in 24 Cut LT 117 : (AIR 1958 Orissa 248) held that even if it is assumed that there was a road in existence, the plaintiff may be presumed only to be a permissive user. In that case Rao, J. held that according to the conditions in India, the relationship of the parties and the circumstances of each particular case, there is a presumption that the user is permissive and the person claiming the right must prove the acquisition of such right under Section 26 of the Limitation Act and Section 15 of the Easements Act.
This decision, however, was reversed in a Letters Patent appeal by a Division Bench of this Court in the case reported in ILR (1960) Cut 77 : (AIR 1960 Orissa 95) Ramesh Chandra Panda v. Lambodar Panda, where their Lordships were of the view that the right of easement which has been enjoyed for a long time must be referred to a local origin and therefore the owner of servant tenement must be presumed to have granted the right. Their Lordships held that:
'In order to rebut the legal presumption that the plaintiff has been using the disputed pathway as of right, the defendant must allege that it was a permissive one. If the defendant does not set up a case of permissive user in his written statement, he cannot be allowed to take up that plea when confronted by the evidence adduced by the plaintiff that the user was as of a right.'
We have already seen that no case of permissive user was pleaded by the appellants, but they merely denied the very existence of a road. Thus, on the basis of the clear finding of the appellate Court and on the basis of the law laid down in the aforesaid case, it may safely be held that the user by the plaintiff of the suit-road was as of right.
8. The main contention urged on behalf of the appellants, however, was that the appellate Court was not justified in allowing the claim of the plaintiff on the theory of 'lost grant' the plaintiff not having based his claim on any such ground. It was contended that it was not open to the appellate Court to make out a new point for the plaintiff and for this purpose learned counsel relied upon a case reported in AIR 1920 Cal 14 (1) Noor Bibi v. Ashan Mulla. In that case the plaintiff filed a suit to establish a right of way over certain pieces of land. The lower appellate Court found that the plaintiff had failed to establish her right of way on the basis of user from time immemorial. It was contended that the plaintiff also based her claim upon an implied grant and easement of necessity and the appellate Court not having given any finding on those aspects of the case, the matter may be remanded for a fresh decision.
His Lordship however rejected the prayer for remand as he was satisfied that no claim of a right of way on any ground other than based upon an immemorial user was pleaded by the plaintiff. That was a case which has no bearing on the present case where the point urged is whether the Court could still grant relief to the plaintiff based upon a lost grant, though that was not specifically pleaded by him.
9. Mr. Dey, learned Counsel for the respondent, onthe other hand relied upon a decision reported in AIR 1932Bom 130 Chintaman Rao Appasaheb v. Ramchandra, whereit was held that although a person may be unable to relyupon the remedial provisions in Section 15, the provisions of.Section 15 are not exhaustive and prohibitory of othermodes of acquiring easements and the Court may stillpresume the existence of a grant at some distant periodof time. The Court must in a suit in which a right of easement is claimed, direct its attention to the question as towhether from the evidence the Court can conclude thatthere was originally a grant. The conclusion must bebased upon a presumption drawn from long undisturbedenjoyment. This case was followed by this High Court as wouldappear from the case reported in 17 Cut LT 120, DingarPanda v. Bhima Padhan. In that case the plaintiff fileda suit for declaration of right of user from a village tankalong with a particular channel and for removal of obstruction and injunction alleging that his rights had also beenrecorded in the record of rights of the years 1922-24. TheTrial Court accepted the plaintiff's version regarding theparticular route by which the water was to flow thoughhe negatived the plaintiff's case of right of easement under Section 26 of the Limitation Act or under Section 15 of the EasementsAct. He decreed the plaintiff's suit holding that the plaintiff had obtained the right by presumption of lost grant.
The Appellate Court disagreed with the Trial Court or the question of acquisition of right of easement by presumption of lost grant. His reason was that as the settlement proceedings took place in the years 1922-24, the plaintiff's right was recognised by those proceedings and the plaintiff had been exercising the right by taking water only from the commencement of the settlement proceedings till the year of obstruction by the defendants in the year 1941 and as this period was less than 20 years, he held that the presumption of lost grant cannot be applied to such a case.
Negativing the above reasoning of the Appellate Court; his Lordship, held that the plaintiff's claim was based on the presumption of lost grant and merely because the settlement entry was made within 20 years of the date of obstruction caused by the defendant, it cannot be said that the user as claimed by the plaintiff came into existence only at the time of settlement.
His Lordship relied upon a decision of the Privy Council reported in Rajrup Koer v. Abdul Hossein, ILR 6 Cal 394 (PC), and held that the provision of the Limitation Act regarding the acquisition of right of easement was not exhaustive and such right may be acquired by long enjoyment which under the circumstances of each case may lead to a presumption of lost grant or agreement. Thus a person claiming an easement may establish his right in a number of ways. He may claim an easement by the prescriptive methods defined in Section 15 of the Easements Act or may claim a right independent of that Section. He may prove the grant by grant of a document, by oral evidence and from the available evidence adduced before the Court, the Court may have come to its own conclusions.
It is for the Court to find out whether on proved facts a case was made out in support of the plaintiff's case. The plaintiff is not supposed to give in his pleadings the nature of evidence he proposes to adduce, which is against the very provision of Order 6, Rule 2, C. P. C. Moreover, this is not exactly where a new case has been made out for the plaintiff by the Appellate Court. All that the Appellate Court has done is that he has drawn an inference on the proved facts.
We have already seen that the findings of the lower Appellate Court are based upon an appreciation of the evidence available on record and cannot be said to be without any evidence. It has already been noticed that the lower Appellate Court arrived at a specific finding of uninterrupted user of the passage as of right by the plaintiff for a period of 20 years. That would have sufficed to give relief to the plaintiff, but he, however, felt inclined to apply the doctrine of lost grant on the ground that the plaintiff had failed to prove the agreement of 1926, and the origin was not traceable. Assuming, however, no importance is to be given to the finding of uninterrupted user by the plaintiff, and the plaintiff's suit was decreed only on the basis of lost grant, it has been further to be seen whether the Court made an absolutely new case so as to spring a surprise on the defendants.
In this connection, it may be noticed that the essence of the plaintiff's case was one of right of way over the disputed land for the acquisition of which the plaintiff relied upon the oral agreement of 1926. But he might have as well omitted to do so and could have alternatively put forth a plea of lost grant. The defence case was one of a denial of the very existence of the road. The learned Munsif framed issue No. 3 as follows:
'Whether the plaintiff acquired a right of way over the suit lands by prescription?'
On the basis of this comprehensive issue the parties adduced their evidence before the Court. The precise mode of acquisition of the right of way was not so much relevant as the fact of acquisition of such right as would appear from the evidence of the parties and the Court came to the finding that the plaintiff had in fact such a right. It has been decided in a series of cases that it is the substance of the pleadings that is material in particular ease and it is always open to the Court to give such relief as is just and proper under the circumstances of each case without of course causing any prejudice to the other side.
In a case reported in Kedarlal v. Harilal, AIR 1952 SC 47, their Lordships held that the Court would be slow to throw out a claim on a mere technicality of the pleadings. When the substance of the thing is there and no prejudice is caused to the other side, it is always open to the Court to give such relief as it deems just as if the same had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for its cost.
10. The another case reported in Nagubai Animal v. Shama Rao, AIR 1956 SC 593, their Lordships held that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where the parties go to trial with the knowledge that a particular question is in issue though no specific issue has been framed thereon or evidence adduced relating thereto. Thus, there cannot be an absolute bar for the Court to grant relief to the plaintiff on the basis of a grant though no such issue was framed. Each case has to be examined on its own merits, the crucial point being whether the parties were aware of the nature of controversy and were not prejudiced in any manner.
11. In a case reported in Paramananda Das v. Sankar Rath, AIR 1951 Orissa 11, a Division Bench of this Court held:
'If a Court sees that the plaintiff is entitled to relief which he claims, although on the ground other than those put forward in his claim, the Court should grant that relief if the defendants were not thereby taken by surprise.'
In view of this position, it cannot be contended as a proposition of law that in no case can a Court grant the relief beyond the limits of the pleadings of a party. Each fact has to be examined on its own merits, keeping in view that no prejudice is occasioned to any party. In the present case, the parties were fully aware of the nature of controversy and in fact they led evidence in support of their respective cases. There was nothing to prevent the plaintiff from putting forth an alternative case or making two sets of allegations and claiming relief thereunder. In this view of the matter, the finding of the learned appellate Court cannot be said to be illegal, which is accordingly affirmed.
Thus there is no merit in this appeal which is accordingly dismissed with costs.