Amiya Kumar Mookerji, J.
1. This appeal is by the defendant, -- the Union of India, representing the South Eastern Railway and it arises out of a suit brought by the plaintiff company for declaration of a right of easement and a right of passage over the disputed land as described in the schedule to the plaint and for a permanent injunction.
2. The plaintiff's case, in substance, was that the plaintiff No. 1 and its sister company plaintiff No. 2 had been running mills in Fort Gloster mouja. A district board road known as 'Damjur Road' runs upto the mills, at one end crosses the Railway lina of South Eastern Railway over a level crossing to the east of Bauria Railway Station and continues towards the north. To meet the requirements of heavy vehicular traffic, the plaintiffs constructed a wider one mile long private road upon their own land at a considerable cost and linked up the same with the said District Board Road at the level crossing. At the time of construction of the said road, the Managing Agent of the plaintiffs company carried on negotiation with the authority of the Bengal Nagpur Railway for a through passage of the vehicular traffic along their private road and over a portion of the Railway's land being plots Nos. 1111 and 1122 of khatian No. 30 of mouja Burikhal. The terms settled upon the negotiation were, that the Railway would do the earth work for the road within the boundaries of Bauria Railway Station free of costs; that the plaintiff company would metal the road within the Railway boundaries and maintain with proper repairs at the cost of the company. The road within the Railway boundary shall be considered as public one and no toll should be charged for traffic for it. On the road outside the Railway boundary, the company would charge tolls on vehicular traffic, foot-passengers being allowed to use it free of costs and are provided with passage over it on such day in theyear that the plaintiff company considers it necessary to close it.
3. The suit was contested by the Union of India. The defendant denied about the agreement over the suit land as alleged by the plaintiffs and it contended that no terms were settled on the basis of any such negotiation. The disputed land was acquired by the Government under the Land Acquisition Proceedings for the use of Bengal Nagpur Railway and the title of suit land was always and even now is, with the Government. The plaintiff-company never acquired the right of way over the disputed path-way by continuous and uninterrupted user for over twenty years and no obligation undertaken by the Railway authorities ripen into a legal right in favour of the plaintiffs as alleged.
4. The trial Court dismissed the plaintiff's suit upon the findings that the plaintiff company had neither acquired any right of easement over the disputed road by prescription as the land was used by them for less than sixty years, nor by any contract, or in equity, although it found that the plaintiff-company used the road openly, peaceably as of right and without interference for more than twenty years.
5. On appeal, the Court of appeal below also agreed with the findings of the trial Court and did not uphold the plaintiffs claim for right of way over the disputed land by way of easement or by contract and equity but set aside the judgment and decree of the trial Court and decreed the plaintiffs' suit upon a new plea of dedication raised by the plaintiff with leave of the Court under Order 41, Rule 2, Civil P. C. The Court of appeal below found that all along the conduct of the State vis-a-vis the disputed land was one of acquiescence to the user of the same by the public as a high way and from this long user of the same by the public as a high way since 1911, the dedication could be inferred. The learned Additional District Judge ultimately came to the conclusion that dedication by the Railway had been accepted and acquiesced by the State and upon these findings granted the plaintiff No. 1, as a member of the public, a decree for its claim of right of way over the disputed land. The suit of the plaintiff No, 2, however, was dismissed. The defendant, being aggrieved against the said judgment and decree of the Court of appeal below preferred this second appeal in this Court.
6. Mr. Mitra, appearing on behalf of the appellant, contended that the learned Additional District Judge erred in law in allowing the plaintiff, under the provisions of Order 41, Rule 2, Civil P. C., to raise a new point of dedication of the disputed land when it was not pleaded in the plaint; no issue was either raised or framed by the trial Court; no ground of appeal had been taken in the Court of appeal below. The trial was on specific issues viz. had the plaintiff company their alleged right of easementover the disputed property and were the plaintiffs and the co-plaintiffs entitled to a right of passage by contract and in equity over the disputed property. The pleadings and issue, Mr. Mitra contended, did not give rise to contest on any other kind of right. The new plea of dedication was a question of fact, so the Court of appeal below was not justified in allowing the plaintiffs to raise such a plea for the first time in appeal.
7. Mr. Mitra further contended that the Court of appeal below decreed the suit upon a case not raised by the parties and to which no evidence had been directed. That was a substantial error or defect in the procedure which produced error or defect in the decision of the case upon the merits within the meaning of Section 100(1)(c) of the Civil P. C. Mr. Mitter in this connection drew my attention to certain observations of the Privy Council in the case of Shivabasava Kom Aningavda v. Sangappa Bin Amingavda, reported in (1904) 31 IA 154 at p. 159.
8. In that case the trial Court found that adoption of the respondent was legal and valid; the Court of appeal below found on facts that there was no legal adoption. The High Court set aside the judgment of the lower appellate Court. It was urged before the Privy Council that the High Court had no jurisdiction in deciding a second appeal to interfere with the findings of the lower appellate Court. To that, the Privy Council observed that the lower appellate Court did dispose of the suit upon a case not raised by parties, and to which evidence had not been directed and that, was a substantial error or defect of procedure within the meaning of Section 584 which corresponds to Section 100 of the Civil P. C. 1908.
9. Mr. Das appearing on behalf of the respondent, contended that the facts were already on the record, so no higher right was given by the Court of appeal below by allowing the plaintiffs to raise the point of dedication. Moreover, the defendant did not object of raising such a point. Therefore, it could not be said that the defendant took the new point by surprise and had no opportunity to meet that point while the litigation was in the Court of appeal below. The parties went to trial fully understanding the facts already on record. So, absence of framing of a specific issue did not lead to a mistrial sufficient to vitiate the decision. In this connection Mr. Das relied upon the decision of the Supreme Court, Kunju Keshavan v. M. M. Philip, reported in : 3SCR634 and as regards raising of the new plea, he relied upon the three decisions of the Supreme Court; Radha Sundar Dutta v. Mhd. Jahadur Rahim, : 1SCR1309 ; Keshavlal Lallubhai Patel v. Lalbani Trikumlal Mills Ltd., : 1SCR213 ; Chittoori Subbanna v. Kudappa Subbanna, : 2SCR661 .
10. In Kunju Keshavan's case : 3SCR634 , the Supreme Court observedthat when the parties went to trial fully understanding the central fact whether the succession as laid down in Ezhava Act applied to one Bhagabati Valli or not, absence of issue, therefore, did not lead to a mistrial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication, ............ 'the suit propertywas obtained as the Makkathayam property by Bhagabati Valli under the Ezhava Act
11. In view of the fact that the plaintiff has specifically stated his case in the rejoinder and both parties understood what would have been the issue in the case, in that context the Supreme Court held that absence of issue did not lead to mis-trial but in the instant case there is no whisper in the plaint or in the written statement about the dedication and the decision on the question of dedication without framing an issue, in my opinion, is a mist-trial which vitiates the decision. The above decision of the Supreme Court as referred to by Mr. Das is distinguishable and does not apply to the facts and circumstances of the present case.
12. In Radha Sundar's case : 1SCR1309 , the appellant sought to raise the contention regarding the true nature of a grant, a chaukidari chakran land for the first time in appeal. The Supreme Court held that the construction of the terms in the document is a question of law and no evidence is admissible on a question of construction of a grant which must be based solely on the terms of the document where there is no dispute as to how the contents of the document are related to the existing facts.
13. In Kcshab Lal's case : 1SCR213 the Supreme Court held that where the plea raised is a plea of law based solely upon the construction of a letter which is the basis of the case for extension of time for the performance of the contract, it was competent to appeal Court to allow such a plea to be raised under Order 41, Rule 2, Civil P. C.
14. The next case referred to by Mr. Das, is Chittoori Subbanna, : 2SCR661 . In that case also the Supreme Court held that a pure question of law not dependent on the determination of any question of facts should be allowed for the first time in the ground for appeal by the first appellate Court.
15. In all the above three cases referred to by Mr. Das, the Supreme Court held that a pure question of law can be raised for the first time in the appellate Court but dedication is a question of fact and without statement of fact and evidence in support of it, it is not permissible to raise the question of fact for the first time before the Court of appeal below. Therefore, in my view, the above decisions of the Supreme Court as referred to by Mr. Das, have got no application to the present case.
16. Mr. Das next contends that dedication is a matter of legal inference to be drawn from the proved facts. When the Court of appeal below, ............ the finalCourt of facts, has drawn such an inference, this Court in second appeal should not interfere with that findings.
17. Inference is forming of a conclusion from premises either by induction or deduction. So without any premises there cannot be any inference. Presumption of dedication is a question of fact and the intention to dedicate ......... animus dedicandi, asa public way can be inferred against a person who at the material time, is the absolute owner of the land. In the instant case, Bengal Nagpur Railway was a lessee and not the actual owner of the land. A lessee without the consent of the owner cannot dedicate land as a public way. There is no such evidence of consent by the owner for such dedication.
18. It has been laid down by Lord Atkinson in Folk stone Corporation v. Brock-man, 1914 AC 338 that proof of long continuous and uninterrupted user of a way by the public, though it is evidence from which dedication may be inferred, does not create a presuptio juris in favour of dedication which', unless rebutted, must prevail. In the present case, the new plea of dedication was raised before the Court of appeal below. It is true that the defendant did not raise any objection of raising such a plea but at the same time, the defendant had to be given an opportunity to rebut the presumption by adducing evidence.
19. Moreover the presumption from user must arise from a user as of right. Where there is no balance of probability in favour of dedication, the presumption of user may be rebutted by showing that the user was not as of right or by evidence of the nature of locus in quo or by evidence of the title to the land showing that there is no owner capable of any dedication. The evidence that the way is maintained and repaired at the public expenses supports the presumption from public user. Except the evidence that the plaintiff company repaired the road, there is no such evidence that the disputed road is repaired either by the District Board or by public authority. A sketch map is annexed to the plaint. If there was any statement of dedication either in the pleadings or in the evidence, then it could have been shown, as pointed out by Mr. Mitter, that the disputed road was a Cul-de-sac as one end of the road leads to the mills of the plaintiff company and by evidence of user alone, a public right of way could not be established in a Cul-desac without proof that public money has been spent upon it vide, A. G. v. Antrobus, (1905) 2 Ch D 188.
20. In the present case the user is referable to and explained by the agreement in the correspondence which the plaintiff company entered into between the BengalNagpur Railway Co. In Barraclough v. Johnson, (1838) 8 Ad & El 99, the owners of the land agreed to open a road on their land to carriages; certain Iron Company agreed to supply cinders for the repair of the road and the inhabitants of the hamlet undertook to carry and spread them. The said arrangement was carried out for 19 years, when disputes arose and the owner closed the road and excluded the public, it was held that, the user being referable to and explained by agreement, there was no dedication, but a mere licence which the owners were entitled to revoke on breach of the agreement. In the present case it also appears that user is referable to the negotiations in the correspondence. So, under these circumstances it can fairly be presumed that the plaintiff company used the disputed road as a mere licencee, they had only the permission to use the road under the agreement.
21. Mr. Das referred to issue No. 5viz. are the plaintiffs and co-plaintiffs entitled to a right of passage by contract and in equity over the disputed property? and also drew my attention to the evidence of P. Ws. 3, 4 and 5 who said about uninterrupted public user for a long time, Mr. Das contended that the said issue covered dedication and evidence of long and uninterrupted user by the public was also there.
22. The said issue No. 5, it appears, has been found against the plaintiffs concurrently by both the courts below. The evidence laid on other issues could not be utilised or looked into in support of the new pica of dedication not raised in the plaint vide, Siddik Mahamed Shah v. Mt. Saran. AIR 1930 PC 57 (I). Under 41, Rule 2, Civil P. C., ample powers have been given to the appellate Court to decide an appeal on a ground not contained in the memorandum of appeal. It can suo motu raise a new point of law provided it would not prejudice the parties. But the Court will not be justified in taking upon a new question under the aforesaid Rules unless there can be no reasonable doubt on the records that the evidence on the new point has been completely given on both sides or the point is a pure question of law and it is expedient in the interest of justice to consider and decide.
23. If the facts proved and found as established are sufficient to raise a new plea under Order 41, Rule 2, Civil P. C., it is not only competent to but expedient in the interest of justice to entertain that plea. But when the question is not a pure question of law but a question of fact, the Court should not allow such question to be raised for the first time. In Ittyavira Mathai v. Varkey Varkcy. reported in : 1SCR495 , the Supreme Court did not allow the question of limitation to be raised in that Court as it was considered to be not a pure question of law but a mixed question of law and facts. Dedication is a question of fact and without any statement of facts and evidence in sup-port of it, it is impossible to come to any conclusion. Therefore, in my opinion, the Court of appeal below was not justified in allowing the plaintiff to raise a new plea of dedication under the provisions of Order 41, Rule 2, Civil P. C. The Court of appeal below fell into an error in adopting a wrong procedure which produced error in the decision of the case upon the merits and accordingly, its decision cannot be sustained.
24. In the result, this appeal is allowed, the judgment and decree of the Court of appeal below are set aside and that of the trial Court restored. There will be no order as to costs.
25. The cross-objection is not pressed and it is accordingly dismissed but there will be no order as to costs.
26. Leave to appeal under Clause 15 of the Letters Patent, as prayed for, is granted.