1. The proceedings m this case originated in an application addressed to the Circle Officer of Pangsa Circle by which a number of persons complained that the petitioner Prannath Kandu had placed some refuse etc., on a public road running through plots 511, 512 and 513, which was in use for a very long time, in order to convert it into land in his possession and had thus caused inconvenience to the applicants. It prayed that the public road ight be cleared up and opened to the public as before. It was forwarded by the Circle Officer to the Sub-Divisional Magistrate who summoned the petitioner under Sections 283 and 290, I.P.C. The case was tried by another Magistrate who eventually convicted the petitioner under Sections 283 and 426, I.P.C. and sentenced him to pay a fine of Rs. 20, in default to undergo simple imprisonment for one month. On appeal the District Magistrate has altered the conviction to one under Section 341, I.P.C. keeping the sentence intact. The learned District Magistrate has found that the path lies on the land of the accused and to that extent it is not a public path, but that the public have been using it for over twenty years and that right of way has been established. The petitioner's contention is that these findings, and for the matter of that the evidence, is not sufficient for the conviction of the petitioners.
2. In the Full Bench decision of this Court in the case of Chuni Lal v. Ram Kissen Sahu (1888) 15 Cal. 46 (F.B.) Wilson, J., in one of his classical judgments, agreed in by the other members of the Bench, explained that in India just as much as in England there are three distinct classes of right of way:
First there are private rights in the strict sense of the term, vested in particular individuals or the 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 a city, the tenants of a manor or the inhabitants of a parish or 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 Queen's subjects; and the sense of these is ordinarily dedication.
3. The first question that falls for determination is, to which class of rights does the right alleged to be infringed in the present case appertain? In the application to which I have referred the way is described as a public way. The evidence bearing on the matter stands thus:
P.W. 1 'The public of the village Maguradangi and others walk by this path...The path is 4 or 5 cubits wide aud 5 or 6 rasis long. It does not go beyond his (meaning witness's,) house. From witness's house it goes to accused's house and then by Sham Lai Kundu's house and thence to the Railway line.'
P.W. 2 - 'The path is 6 cubits wide. The path from the accused's house up to the railway line to the north and then east is raised, but not so on the south up to the house of P.W. 1.'
P.W. 3 'The path was used by public for a very long time for over 20 years.'
P.W. 4 'The path does not meet the halot on the south. It passes along the south east of house of P.W. 6 and then along the south of his house. The path is not a raised one. The witness comes southward from his house and going along the south of the house of P.W. 1 and then east, he uses the path, P.W. 3's house is south of witness's, and he goes eastward by the south of the house of P.W. 1 and then cast and then uses the path in question. Another halot to the south of the house of P.W. 1 is 200 cubits away from the path alluded to by the witness along the south of the house of P.W. 1'
P.W. 5 Witness, P.W.'s and the public walk over it. There is no other path for going to that direction.
4. It has been found that the plots over which the path is alleged to pass belong to the petitioner. The evidence quoted above shows that the way begins at or near the house of P.W. 1 and ends at or near the railway line and does not join any highway or public thoroughfare at either end. It also shows taken at its highest that the inhabitants of this village and possibly of other villages, use the way, but such user must be for the purpose of going to or from one of the houses, abutting on the way, for the termini of the way are not on any highway or public thorough fare. A public right of way in the full sense of the term and as to all the King's subjects is unconnected with any dominant tenement. Such right of way may be acquired by user of or dedication to the public in general. But as the Judicial Committee has pointed out in the case of Muhammad Rustam Ali Khan v. Municipal Committee, Karnal City A.I.R. 1920 P.C. 43
in order to constitute a valid dedication to the public of a highway by the owner of the soil, there must be an intention to dedicate, there must be an animus de-dedicandi, of which the user by the public is evidence and no more
5. It has also been pointed out in that case that while there may be dedication to the public for a limited purpose as for instance, an access to a particular building, or a footway, horseway or driftway, there can be no such thing in law as a public right of way constituted by dedication to only a section of the public. The fact that there are no throughfares at the termini is consequently of not much importance on the point of dedication, but the question whether the public in general use the way as a pathway or only the inhabitants of this village and also of some other villages do so is a question of considerable materiality. Where the privilage to use a road is enjoyed only by one particular section of the community or by inhabitants of two or three villages and not by others, the road is not a public road Sham v. Nonee 25 W.R. 233, Fattehyab v. Mohammad (1887) 9 All. 434, whore there is the intention to allow not the public generally but merely visitors to or traders with the people of the village, or ways allowed to be used by villagers to go to a church or a market or the common fields of a village such ways are not regarded as public ways but private ways, and they generally have their origin in custom. Brooklebank v. Thompson (1903) 2 Ch. 344. Such a customary way can be converted into an ordinary highway after user by the general public sufficient to raise the presumption of dedication Farquhar v. Newbary Rural District (1909) 1 Ch. 12, but the evidence in support of the public claim must be cogent 'vestry or Bermondsey v. Brown (1865) 1 Eq. 204. See Peacock's Law of Easements 3rd Edn. p. 237 footnote. The evidence of user such as there is in this case does not support an inference of dedication for the use of the public in general and the pathway alleged is not one which Section 283, I.P.C. contemplates.
6. Section 283, I.P.C. being out of the way, it will have to be considered whether one of the other two kinds of rights has been established so that the case may coma under Section 341, I.P.C. In the present case there is no question of the complainant, whose case is that the obstruction put upon the way has prevented him from going in a particular direction has acquired a right of way! by either grant or prescription. The question really is whether the prosecution has established a customary right of way on the part of the villagers, amongst whom the complainant is one to use this land as a pathway. The English common law rule of the immeinorial user is not required to establish a custom in India, and it has been held that it is sufficient if the Court is satisfied of its reasonableness and certainty and that the user on which it is founded was not permissive nor exercised by stealth or force and that the right had been injoyed for such a length of time as to suggest that by agreement or otherwise the usage has become the customary law of the particular locality. Kuar Sen v. Mamman (1895) 17 All. 87; Shadi Lal v. Mohammad Ishaq Khan (1911) 33 All. 257. Palaniandi Tevan v. Puthirangonda Nandan (1897) 20 Mad. 389, Mohidin v. Shirlingappa (1899) 23 Bom. 660. For the conviction of the petitioner under Section 341, I.P.C. this customary right of way has necessarily to be proved by the prosecution in order to make out that the complainant had the right to proceed on the pathway in some particular direction. The difficulty of proving a customary right of way, with all its requisite elements, upon the oral testimony of two or three witnesses, who are only able to say that for over 20 years the way has been used by the villagers, is considerably enhanced by the exception to the definition contained in Section 339, I.P.C. It is extremely difficult in a case of this nature to say that the accused who has caused the obstruction did not in good faith believe that he had a right to obstruct the further user of his land as a pathway.
7. For this reason I am of opinion that this conviction cannot be supported. The rule is made absolute. The petitioner's conviction and sentence are set aside. The fine, if paid, will be refunded.
8. Before parting with the case I may point out that in cases of this nature the law has provided for a remedy in the shape of proceedings under Section 133, Cr.P.C. which speaks of 'obstruction' on 'any way' and not merely 'public way.' The original application of the complainant and his co-applicants clearly suggested that course, but unfortunately it was not adopted, for reasons which are not, apparent. Those proceedings were clearly more appropriate than a prosecution for a criminal offence.