B.B. Ghose, J.
1. This appeal arises out of a suit for establishment of a right of easement to pass over the land of the defendants as well as the right to pass water over it. The Court of first instance made a decree in favour of the plaintiffs. On appeal by the defendants, the judgment has been reversed by the Subordinate Judge. The plaintiffs appeal to this Court, and their appeal is only with regard to the right of way, as it is admitted that the finding of the learned Subordinate Judge as regards the right of passage of water is conclusive as a question of fact.
2. The main contention of the plaintiffs is that the Subordinate Judge has fallen into an error in deciding the case, as he was of opinion that, if there was not a regular or defined pathway over the waste land of the defendants which is said to be the servient tenement, no right of easement can be acquired by the dominant owner. It is contended on the other hand, by the respondents that this appeal is concluded by the findings of fact of the Subordinate Judge which amount to this, that the plaintiffs have not been able to prove the user necessary for the purpose of acquiring a right by prescription. The Subordinate Judge begins his judgment by stating the points urged before him and they are, first, that the existence of the pathway has not been proved and the evidence does not show any definite route, and that the decree cannot be sustained; second, that the suit is time-barred, and, third, that the right to discharge water has not been proved.
3. With regard to the third point it is not necessary to state anything further because no question arises with regard to it in this appeal. The Subordinate Judge has not come to any decision with regard to the second point, because he thought that his decision on the first point was quite enough to dispose of the suit. The first point that was urged before him was, as I understand it, directed against the existence of the pathway, and the fact that no definite route has been shown by the evidence was said to be quite enough for the dismissal of the suit. Then, the finding of the Subordinate Judge on the question is stated thus : 'The whole evidence carefully analysed would at once show that there was no regular definite pathway, but that there was a piece of waste land over which the people used to pass in recent times, and that the passage to the north of Dayaram's house was used before and can be and is being used now. I am of opinion that the evidence does not satisfactorily establish that any defined pathway, as claimed, ever existed and that the plaintiff ever used that so as to acquire any right of easement.' Then, lower down, the learned Judge sums up by saying : - 'The whole evidence leaves no doubt that there was no regular and defined pathway as has been claimed and that the passage for water has not been satisfactorily established.' As I understand his judgment, the learned Subordinate Judge seems to be of opinion that, if there is no regular and defined pathway over a piece of waste land no right of easement of way can be acquired by prescription, and his finding does not amount to what has been contended for on behalf of the respondents, that the plaintiffs have not acquired the right of way by such user and for such period as is required under the law. Stress is also laid on behalf of the respondents on the expression that the people used the path in recent times over this servient tenement as showing that the plaintiffs could not have acquired an easement by long user. But the learned Subordinate Judge does not find that the user is only within the period of 20 years. Then, with regard to the other passage quoted above, it can hardly be said that it amounts to a finding of fact that there has not been such user as would give rise to a right by prescription, because the learned Judge begins by saying that any definite pathway as claimed has not been established. Therefore, there is no doubt in my mind that the learned Judge addresses himself only to the question as to whether the right of easement can be claimed when there is no regular and defined pathway; and, having held that in such a case no right of easement can be acquired, he does not proceed to deal with all the other questions necessary to be found in order to deal with the right of easement claimed by the plaintiffs and this appears all the more so, because it is a judgment of reversal. It is, therefore, necessary to see whether, the proposition of the learned Subordinate Judge, that there being no regular defined pathway a right of way cannot be acquired as an easement, is correct. It is not necessary for me to discuss this question at any considerable length having regard to the fact that it has been held that in such a case an easement of way can be acquired. Lakhi Kanta Roy v. Raj Chandra Saha (1918) 22 C.W.N. 922, following the observations of Lord Justice Mellish in Wimbledon and Putney Commons Conservators v. Dixon (1876) 1 Ch.D. 362. The learned Vakil for the respondents relies upon two cases, Goluak Chunder Chowdhry v. Tarinee Churn Chuekerbutty 4 W.R. 49 and Radhanath Sugracharji v. Baidonath Seal Kabiraj 3 B.L.R. App. 118. I do not think those cases laid down any different principle of law from that enunciated by Lord Justice Mellish which was followed in the case of Lakhi Kanta Roy v. Raj Chandra Saha (1918) 22 C.W.N. 922.
4. It is next contended on behalf of the respondents that the plaintiffs have not stated the two termini of the alleged pathway in order to bring their case within the rule laid down in Lakhi Kanta Roy v. Raj Chandra Saha (1918) 22 C.W.N. 922. On the other hand, the plaintiffs urged that they have done so. That question has not been gone into by the Subordinate Judge. If the plaintiffs had stated the two termini off the pathway they claimed, their suit ought not to fail simply on the ground that the pathway passed over a piece of waste land in different tracks, and if they succeed in establishing their right otherwise, then they are entitled to a right of way, in the manner laid down in the case cited above.
5. The decree, therefore, of the Subordinate Judge is set aside and the appeal is sent back to him for re-hearing on all the points involved in the case and to decide it according to law.
6. The costs will abide the result.