1. The plaintiff brought the suit, out of which this appeal arises, for recovery of possession of the land in dispute after declaration of his title thereto.
The defendants, representing the villagers, set up a right of passage for men and cattle over the land, they further set up a right of passage of rain water of the village through the disputed land to the Sana tank to its west from which water is taken for irrigation of neighbouring lands and also a right to bale out water from it for purposes of irrigation.
2. The Court of first instance held that the defendants had proved the rights set up. Accordingly, the plaintiff's title to the land was declared subject to the rights found in favour of the defendants.
3. On appeal, the learned Subordinate Judge reversed that decision, and gave the plaintiff a decree for possession. He has come to the conclusion that the defendants failed to prove the rights set up by them. That would, no doubt, be conclusive in second appeal. But it appears that the Court of first instance relied not only upon the evidence of the defendants but also upon certain evidence adduced on behalf of the plaintiff himself in coming to the conclusion that the defendants had proved their right.
4. The learned Munsif refers, in the first place, to a kabuliyat in which the disputed land is described as gopath nala patih jayga.
5. Secondly, be refers to the statement of the plaintiff's witness Serajuddi, viz., that the villagers and their cattle used to pass over the disputed land, And, thirdly, he refers to the Commissioner's report which describes the physical features of the land.
5. The learned Subordinate Judge on appeal refers to the evidence adduced on the defendant's side and then says: 'I do not understand how that evidence can lead to the conclusion that defendants and villagers of Bhota have got a right of way over the disputed land and a right to take water from the same.' Evidently, therefore, the learned Judge had not considered some of the materials upon which the Court of first instance relied in coming to the conclusion in favour of the defendants. Having regard to the fact that the judgment was one of reversal, we think that the evidence relied upon by the Court of first instance should have been taken into consideration by the learned Subordinate Judge.
6. Then the Subordinate Judge says: 'It is an admitted fact that the disputed land was waste land--and it is well-known how such lands are used in the Mofussil. Such possession does not ordinarily create any right in the persons using the same,'
7. The mere fact that the land is waste, however, does not necessarily show that no right can be acquired over such land. If that were so, the right of user over almost every pathway in the Mofussil would be lost, inasmuch as almost every path way lies over waste land: see Shaikh Mahomed Amur v. Shaikh Sefatoollah 22 W.R. 340],
8. In determining the question whether an user of way over waste land was as of right or not, the Court would have to consider the character of the land, the relation between the parties and the circumstances under which the user took place. We may, in this connection, refer to the case of Shaikh Khoda Buksh v. Shaikh Tajuddin 8 C.W.N. 359 at pp. 360, 361, These questions do not seem to have been considered by the Subordinate Judge.
9. Lastly, the learned Subordinate Judge refers to the fact that there is no evidence as to from which house or lands, or to which place, men and cattle pass over the disputed land. Evidently he treated the case as if it was one of prescriptive right under Section 26 of the Limitation Act. There is no doubt that in an earlier passage in his judgment he referred to the fast that the right was claimed on behalf of the defendants and the villagers, but after discussing the evidence he seems to have forgotten it and come to the conclusion that the defendants had wholly failed to prove public or private right over the disputed land.
10. No right, however, on behalf of the public, meaning thereby the general public, was set up nor does it appear that any individual right was claimed. The right set up was a customary right on behalf of all the villagers.
11. It is contended by the learned Pleader for the respondent that such a right is more difficult to prove than a right of easement under Section 26 of the Limitation Act. That may be so, but the question has to be gone into by the lower Appellate Court.
12. We think the learned Judge should consider the case as set up by the defendants and decide the case upon the whole evidence on the record.
13. The case will, therefore, go back to the lower Appellate Court in order that it may tome to a decision in accordance with the observations made above and dispose of the appeal according to law.
14. Costs to abide the result.