S.K. Ray, J.
1. This appeal is by the plaintiffs from the confirming decision of the lower appellate court.
2. Originally plaintiff No. 1 filed this suit for a declaration that defendant No. 1 has no right, title and interest over Schedule 'B' land and that the entry in the record-of-rights of 1962 settlement of defendant No. 1's name in respect of the said land is wrong and that he has right of way over the said land and for permanent injunction restraining defendant No. 1 from setting up a shop or making any kind of construction upon the said land. Subsequently, by order of the High Court passed in C.R. No. 79 of 1967 the plaintiff was allowed to amend his plaint and to convert it to a representative suit under Order 1. Rule 8, C.P.C. on behalf of the villagers of Gureipali. By amendment, the original prayer (e) of the plaint was amended and a declaration was sought that the villagers of Gureipali have right of way over Schedule 'B' land.
3. Schedule 'B' land measures about A0.01 decimal and appertains to plot No. 191 in khata No. 14 of mouza Gureipali of the 1962 settlement. It appears from Ex. H, the parcha, read with the R.S. record-of-rights (Ex. Q) that C. S. Plot No. 191 comprising of 1 decimal has been carved out of the southern portion of K.S. Plot No. 280 which had been recorded as a rasta in Ex. Q. because the northern boundary of this C.S. plot No. 191 has been described to be a rasta. The C. S. record-of-rights of 1962 (Ex. G) shows that there is a house standing on C. S. plot No. 191. In the R.S. record-of-rights (Ex. Q), though R.S. plot No. 280 has been shown to be rasta, there was also mention of chalia on a part of it. In absence of anything to the contrary on the record rebutting the presumption of these records-of-rights, it is bound to be held that there was a chalia on 1 decimal of land which was once a part of R.S. plot No. 280 but now constitutes a separate C.S. plot No. 191, The balance of R.S. plot No. 280 continues to be recorded as rasta. The R.S. map (Ex. 2) reflects the entries in the R.S. Record-of-rights (Ex. Q). Similarly C.S. map, Ex. 1, reflects C. S. record-of-right (Ex. G), because there are dots in those R.S. and C. S. plots indicating the existence of a challa.
4. It is now claimed in this suit that this C. S. plot No. 191 forms part of Gureipali village road. There is. in fact, a Gureipali village road which starts from village Gureipali and meets the main Khandapara-Jatni road. It is at this junction of the village road with the main road that the disputed C.S. plot No. 191 containing a Ghar is located. Admittedly, R.S. plot No. 280 belongs to Nrusingh Jew Thakur of Kendeuapali Math and that the defendant No. 1 had taken a part of it, which now constitutes C.S. plot No. 191, on lease from the former and has been holding his shop there since the time of his father. The ownership of the deity is not in dispute, but subject to such ownership, Schedule 'B' land has constituted part of the Gureipali village road. There was no indication of dimension of the road as to its width and length in the plaint, but, as is disclosed from the evidence adduced on behalf of the plaintiffs as well as on behalf of defendants the suit land is 5 cubits x 4 cubits while the width of the Gureipali village road at the junction is 14 to 15 cubits according to some and 10 to 12 cubits according to others. The width of the main Khandapara Jatni Road is 10 to 12 cubits according to some and 8 to 10 cubits according to others. If the width of the disputed land is excluded, the width of Gureipali village road would be about 9 to 10 cubits at the place where C. S. plot No. 191 is located. Thus, if all manners of vehicles and traffic can pass over Khandapara-Jatni road having a width of 10 to 12 cubits, the width of Gureipali village road excluding the disputed land will be sufficient to accommodate all such vehicular traffic and the villagers will not be affected by the contemplated construction on C.S. plot No. 191. This is the only conclusion possible from the oral evidence on record. The plaintiffs should have been well advised to take out a civil court commissioner to measure the dimension of the Gureipali village road at the place where C. S. plot No. 191 is situated together with the location of the Ghar over that plot and its corresponding location in R. S. plot No. 280. But since that has not been done the only conclusion that is possible is, as has been indicated above, unless chalia situated on R. S. plot No. 280 had, in fact, been shifted to another place in R. S. plot No. 280 which now constitutes C. S. plot No. 191 in which case there could be no question of the village road as existing during R.S. being narrowed by the proposed construction of a house on C.S. plot No. 191. The presumption is that the house indicated in R.S. plot No. 280 continues to remain at the identical spot on the locality and is so indicated both in C. S.map (Ex. 1) and C. S. record-of-rights (Ex. G).
5. Nrusingh Jew Thakur was impleaded as defendant No. 2 as owner of R. S. plot No. 280 part of which corresponds to C. S. plot No. 191, but the deity has remained ex parte. The right of way claimed in the instant case is on behalf of the villagers of Gureipali who are certain portions of the public. Such rights of way commonly have their origin in custom. There is no other legal way to claim a right of passage by certain portions of the public like the villagers of Gureipali. The different kinds of rights of way which are available to be acquired and the manner of such acquisitions have been enumerated in judicial decisions. I will extract one passage from the case of Pran Nath Kundu v. Emperor, AIR 1930 Cal 286, which runs as follows:-
'In India just as much as in England there are three distinct rights of way. First there are private rights in the strict sense of the term vested in particular individuals or owners of particular tenements and such rights commonly have their origin in grant or prescription. Secondly, there are rights belonging to certain classes of persons, certain portions of the public, such as the freemen of the city, tenants of a manner or the inhabitants of a parish village. Such rights commonly have their origin in custom. Thirdly, there are public rights in the full sense of the term which exists for the benefit of all the King's subjects and the sense of these is ordinarily dedication.'
Without referring to this Calcutta decision, the principle laid down therein has also been accepted by this Court in the case of Khandeswar Champati v. Gokulananda Jena, 31 Cut LT 177 = (AIR 1965 Orissa 91), where it has been further said that dedication of a piece of land to a limited section of the public, such as, the inhabitants of a village is unknown to law. Thus the only way for the plaintiffs to establish their right of way over Schedule B land was to prove its origin in custom. Far from pleading such a case of custom in the plaint, the right of way claimed is stated to have its origin in prescription, which is unknown to law. Despite amendment of the plaint the origin of the claimed right of way as set forth originally in the plaint was not amended. Neither an issue as to custom was framed nor any evidence on the point was led by the plaintiffs. This suit, therefore, must fail as the villagers of Gureipali cannot be given a declaration to have acquired a right of way over Schedule 'B' land by prescription for the simple reason that the only mode of acquisition of such a right of way available to the villagers has notbeen made the basis of their claim in the plaint. Even if custom had been pleaded the suit could not still succeed without disproving the identity of Schedule 'B' land comprised in C. S. Plot No. 191 with that portion of R. S. Plot No. 280 which has been indicated in the R. S. record-of-rights as containing a chalia or house. The inference from the R.S. record-of-rights is that the R.S. plot No. 280 was a rasta except that portion where the re-cord-of-rights indicates existence of a chalia. In this case, far from adducing any credible evidence showing that the Schedule 'B' land was a part of road portion of R.S. Plot No. 280, no attempt appears to have been made to prove it. For this reason also the suit must fail.
The dismissal of the suit, however, would not affect the villager's right of way over the road which has been recorded as appertaining to R. S, plot No. 280 except the portion containing a chalia and which must, therefore, be deemed to continue on the corresponding C. S. plots. What are those corresponding C.S. plots, there is no evidence nor was any such evidence called for within the narrow compass of the present suit. Therefore, nothing said here nor the dismissal of this suit will affect the right of villagers over the village road as exists on the locality today.
6. For the aforesaid reasons, I am of opinion that the suit has been rightly dismissed by the courts below. The appeal, accordingly, fails and is dismissed with costs.