Asutosh Mookerjee, C.J.
1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for declaration of a right of way over the land described in the plaint.
2. The plaintiffs based their claim on user for over one hundred years and also asserted that the way was an easement of necessity. They obtained a partial decree in the Court of first instance. On appeal, the Subordinate Judge gave them a larger measure of relief, on the ground that they had established the right of way claimed on the presumption of a lost grant. Upon second appeal to this Court, Mr. Justice Newbould has, on the facts found by the Subordinate Judge, come to the conclusion that the theory of a lost grant was not applicable, On the present appeal, it has been contended that the case was concluded by the finding of the Subordinate Judge and that it was not competent to Mr. Justice Newbould to reverse that finding on second appeal.
3. The Subordinate Judge found that the plaintiffs and their predecessors had exercised a right of way for over sixty years, though there had been an interruption of that right for 10 or 12 years, and he concluded that there must have been a lost grant.
4. Mr. Mitter on behalf of the defendants-respondents has argued that the inference was one of law and that it was consequently open to this Court on second appeal to take a different view from that adopted by the Court of Appeal below. We are unable to accept this contention as well founded. The gist of the principle upon which a lost grant is presumed is that the state of affairs is Otherwise unexplained. Mr. Justice Farwell observed, in the case of Attorney General v. Simpson (1901) 2 Ch. D. 671 at p. 698 : 70 L.J. Ch. 828 : 85 L.T. 325 : 17 T.L.R. 768, that 'When the Court finds an open and uninterrupted enjoyment of property for a long period unexplained, omnia presumuntur rite esse acta, and the Court will, if reasonably possible, find a lawful origin for the right in question.' That the process is one of inference of fact and not of legal conclusion is well established. We need refer only to the observations of Brett, L.J., in Angus v. Dalton (1878) 4 Q.B.D. 162 at p. 201 : 48 L.J.Q.B. 25 : 40 L.T. 605 27 W.R. 623, where be stated that the question in controversy was, whether the inference was to be treated as a necessary legal consequence or as an inference of a fact. This was said with regard to what had happened in the decisions cited Suring argument of that case, which fell into two classes. In one class of cases it was stated that if user for twenty years was established, the Jury could be directed as a matter of law to hold that a lost grant had been madden. In the other class of cases, it had been held that the Jury were free to draw an inference to that effect, if the evidence was not rebutted, Brett, L.J., added that if the case was tried before a Judge without a Jury, he must find such facts though he might not do so in terms; if it was tried before a Judge and Jury, inasmuch as the Judge could not in such case determine any fact, it was the Jury which must find the fact. This view is supported by the judgment of Baron Parke in Bright v. Walker (1834) 1 Cr. M. & R. 211 : 40 R.R. 536 : 4 Tyr. 502 : 3 L.J. (N.S.) EX. 250 : 149 E.R. 1057 (1834) 1 Cr. M. & R. 211 : 40 R.R. 536 : 4 Tyr. 502 : 3 L.J. (N.S.) EX. 250 : 149 E.R. 1057 and that of Baron Alderson in Jenkins v. Harvey (1835) I Cr. M. & R. 877 at p. 895 : 40 R.R. 769 : 1 Gale 23 : 5 Tyr. 326 : 5 L.J. (N.S.) Ex, 17 : 149 E.R. 1336 (1835) I Cr. M. & R. 877 at p. 895 : 40 R.R. 769 : 1 Gale 23 : 5 Tyr. 326 : 5 L.J. (N.S.) Ex, 17 : 149 E.R. 1336. Such a grant may be presumed from acts of ownership or of enjoyment for twenty years and upwards consistent with the grant alleged in the plea : Campbell v. Wilson (1803) 3 East 294 : 7 R.R. 462 : 102 E.R. 610, Livett v. Wilson (1825) 3 Bing. 115 : 10 Moore 439 : 3 L.J. (O.S.) C.P. 186 : 130 E.R. 457, Bass v. Gregory (1890) 25 Q.B.D. 481 : 59 L.J.Q.B. 574 : 55 J.P. 119, Pothier on Obligation, note by Evans, Volume II, page 135 ; Bullen and Leake's Precedents of Pleading, 3rd- Edition, page 812, where reference is made to Pomfret v. Bicroft (1681) 1 Wms. Saund. 321 at p. 323 : 85 E.R. 454 and Yard v. Ford (1682) 2 Wms. Saund. 172 at p. 175 : 85 E.R. 922.
5. The view we take is in harmony with the decision of the Judicial Committee in the case of Rajrup Koer v. Abul Hossein 6 C. 391 : 7 I.A. 210 : 7 C.L.R. 529 : 4 Shome L.R. 7 : 4 Sar. P.C.J. 199 : 3 Suth. P.C.J. 816 : 4 Ind. Jur. 530 : 3 Ind. Dec. (N.S.) 257, which is an authority for the proposition that the Limitation Act was not exhaustive and that a man might acquire a title under it who had no other right at all, but it did not exclude or interfere with other titles and modes of acquiring easements. The Judicial Committee then proceeded to observe as follows: 'Their Lordships think that, in this case, there is abundant evidence upon the fasts found by the Courts for presuming the existence of a grant at some distant period of time. The result of the facts which appear in evidence, and the effect of the judgments of the Munsif and of the Subordinate Judge, are thus stated in the judgment of the High Court: 'The evidence shows, and the Courts appear to have found, that the pain was constructed by the ancestors of the plaintiff a great many years ago, possibly fifty or sixty years--certainly more than twenty years--for the purpose of irrigation; and there is part of the evidence which indicates that such construction was accompanied with certain advantages on the part of the defendants, which compensated them for any injury or inconvenience caused by the construction of the pain. This being an artificial pain constructed on the land of another man at the distant period found by the Courts, and enjoyed ever since, or at least down to the time of the obstruction complained of, by the plaintiff and his ancestors, any Court which had to deal with the subject might, and indeed ought to, refer such a long enjoyment is a legal origin, and, under the circumstances which have been indicated, to presume a grant or an agreement between those who were owners of the plaintiff's Mahal and the defendant's land by which the right was created. That being so, the plaintiff does not require the aid of the Statute; and his right, therefore, is not in any degree interfered with by the provision in the 27th section, upon which the Munsif decided.' This judgment makes it clear that in the opinion of the Judicial Committee it was open to a Court of fact, upon the circumstances of the case and the long user proved, to draw the inference that the user had a legal origin, in other words, that a lost grant had been established.
6. Reliance has been placed by the respondent upon the decision of Sir Barnas Peacock, C.J., in John George Bagram v. Khettranath Karformah 3 B.L.R. (O.C.) 18 at p. 48 as also upon the decision in Charu Surnokar v. Dokouri Chunder Thakoor 8 C. 956 : 10 C.L.R. 577 : 7 Ind. Jur. 86 : 4 Ind. Dec. (N.S.) 616. Neither of these cases, in our opinion, is of any assistance to the respondent, as they do not show that the inference is an inference, of law. As we have already explained, there was at one time some controversy over the question whether, if twenty years' user was esbablished, the Court was or was not bound as a matter of law to infer a lost grant. If the view be accepted that such an inference must be drawn as a matter of law, the respondent is out of Court. If, on the other hand, the view be adopted that the question is for decision by the Court of fact, he is equally out of Court, because the Subordinate Judge has here found that legal orign had been established. In , our opinion, it was not competent to this Court in second appeal to interfere with the judgment of the Subordinate Judge.
7. The result is that this appeal is allowed, the decree made by Mr. Justice Newbould set aside and that of the Subordinate Judge restored with costs both here and before Mr. Justice Newbould.