C.N. Laik, J.
1. The points raised in this appeal (sic) whether the villagers of a village are fluctuating body of persons; whether they as such can acquire a right of way; if so, what would be the nature of such right and what would he the quality of the evidence by which such a right was capable of being supported; how can it be acquired viz., whether by custom, lost grant, prescription or adverse possession. It had led to other questions; viz., whether such a customary right would be like all other local customs. If so, would such a custom be reasonable? Again, what should be the length of the user and the period of enjoyment from which a reasonable inference could be drawn as to the acquisition of such a right of way i.e.. whetherthe theory of 'time immemorial' would be incumbent in all such cases; and lastly whether the villagers, could in such cases give a common consent.
2. Several decisions are cited on respective, points. Many of them are Bench decisions. Some of them, as has been argued, do not go the very same way as the other decisions. There are decisions of other High Courts. For exam-ple. Mudholkar, J. (as his Lordship then was) inter alia hold in the case of Bari Kumbhakar v. Tukaram Teli : AIR1959Bom54 that the villagers are not fluctuating body of persons. It is submitted that the Supreme Court has not pronounced the law as such, in the case of Braja Sundar v. Moni Behara : 2SCR431 . The Bench decision of this Court in the case of Gopal v. Abdul, 34 Cal LJ 319: (AIR 1921 Cal 569) which has been cited against the appellants, has been distinguished by this Court in the case of Abdul Hossain v. Sadai Gobinda, (1938) 42 Cal WN 1102. Another Bench decision of this Court in the case of Asrabulla v. Klamatulla : AIR1937Cal245 cited by the appellants, on the other hand, has been approved by their Lordships of the Judicial Committee in the case of Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56: 70 Ind App 271 which in its turn again is approved in the said Supreme Court decision of Moni Behara : 2SCR431 (supra).
3. The other decisions cited are Chuni Lall v. Hamkishen Sahu, (1888) ILR 15 Cal 460 (FB); Kuar Sen v. Mamman, (1895) ILR 17 All 87; Prodyot Coomar Tagore v. Gopi Krishna Mondal, (1910) 11 Cal LJ 209; Ali Md. v. Sheikh Katu, 36 Cal LJ 280: (AIR 1923 Cal 200); Panchanon Ray v. Fazlur Rahman, AIR 1942 Cal 505; 46 Cal WN 743; Baba Narayan v. Saboosa ; Mt. Subhani v. Nawab, ; Gokul Chand v. Parvin Kumari, AIR 1952 SC231: 1952 SCR 825.
4. The plaintiffs respondents brought the suit in 1954 for a declaration that the defendants appellants for themselves and as representing the members of the village, had no right of way over the disputed land. The plaintiffs also sought for declaration of their title and recovery of khas possession of the same and for an injunction restraining the defendants from interfering with their possession and from using the land as a pathway.
5. The plaintiffs case in short was that after the Santahar disturbance in the year 1949, many people from Eastern Pakistan including the defendants came to settle in the village near Hili in West Dinajpur. In or about September 1950, the defendants began to pass through the disputed track. The plaintiffs closed the same by erecting a fencing which the defendants removed. A criminal case followed. Thereafter the plaintiffs were compelled to bring this suit.
6. It was contested by all the defendants, except one. Besides the pleas of limitation and acquisition of title by adverse possession and beside the pleas of non-existence of alternativepathway, the main defence was that the defen-dants including the villagers of the village, had the customary right of way over the disputed passage and that by user or the same from time immemorial.
7. On a consideration of the evidence, the learned Munsif decreed the suit, inter alia holding, that neither the defendants nor the villagers did acquire any customary right of way over the disputed pathway. The defendants preferred an appeal therefrom which was dismissed by the learned Additional Subordinate Judge, Balurghat. Against the said decree, the instant Second Appeal is again by the defendants.
8. I desire to intimate at once that Mr. Sailendra Bhusan Bakshi, the learned Advocate appearing on behalf of the defendants appellants, made an impressive argument on the points raised for the first time here but in my opinion I ton not called upon to decide on most of the points raised as the main question at issue is really and in essence a short one.
9. The following relevant facts have come out from the verbal evidence. The disputed pathway is brought into existence by the defendants, as it gives a straight access to their house which admittedly stands on the plaintiffs' land and of which the defendants do not take any settlement. The defendants Nos. 1 and 2 have constructed a latrine near the old pathway and have been throwing garbage on its western side, so the passers-by avoid going by the said old pathway and have made the new pathway through the disputed land. The disputed pathway is not the only one, leading to the house of the defendants and defendant No. 1 speaks of another pathway on which there is a plank to serve the purpose of a bridge which is constructed by the villagers. A pleader Commissioner was appointed. He submitted a report.
10. The Courts below, on consideration of the evidence including the said report, have inter alia found that there is a kutcha road on the northern side and the District Board Road on the southern side. The original pathway runs in a straight line. The disputed pathway is a diversion from the original pathway in respect of its middle portion. It is found that the defendants have not acquired the customary right of way. It is further found that the plaintiffs have title in respect of the land over which the disputed pathway runs. The suit was held not to be barred by limitation.
11. Mr. Bakshi argues relying on the Privy Council decision of Radcliffe, i. in the case of Lakshmidhm Misra, 76 Ind App 271: (AIR 1950 PC 56) (supra) that though custom was not pleaded, he could agitate that point in the Second Appeal as there was no misgiving or prejudice to the plaintiffs and as the judgments of both the Courts below proceeded in that way. Even assuming that Mr. Bakshi is correct in his submission I am of opinion that the finding of fact rightly arrived at concurrently by both the Courts below that the defendants have not acquired a customary right, cannot and should not be upset in a Second Appeal.
12. It was then argued that the evidence of some of the witnesses, though hearsay, should be taken as sufficient to prove the existence of custom. In support of the said contention, reliance was placed on a Single Bench decision (un-reported) of Bijayesh Mukherjee, J. in the case of Dharanidhar v. Netai, S. A. 327 of 1956 dated 30-1-1964 (Cal), where his Lordship relying upon the observation of Biswas, J. in the case of Panchanan Roy : AIR1942Cal505 (supra), lays down 'I realize, even hearsay evidence is allowable to prove an ancient right founded on custom'. With respect to my learned brother. B. Mukherji, J. I cannot persuade myself to hold that Lord Carson, delivering the judgment of the Board in the case of Rajendra Narain v. Gangananda, which merely was followed by Biswas J. in the said decision at p. 749 of 46 Cal WN: (at p. 509 of AIR) laid down the said proposition in general terms, as sought to be laid down by B. Mukherji, J. Hearsay evidence was allowable, say their Lordships of the Privy Council, only 'after the existence of the custom for some years has been proved by direct evidence' (page 285 or 52 Ind App): (at p. 216 of AIR). It should not also be forgotten that the terms of Section 2 of Bengal Regulation 11 of 1825, respecting the immemorial establishment of the disjunction and junction of land by the encroachment or recess of a river by clear and definite usage, fell to be considered before the Privy Council, which is not the same thing as a customary right of way.
13. I think, the cases would bear me out when I say that there cannot be direct and positive evidence in many cases for the whole period of the immemorial enjoyment of the right claimed. I wish to make it clear that it is not also necessary that custom should be traced back for the whole time necessary to make it immemorial. Custom no doubt derives its force from the fact that it has a long usage but it is not the essence of the rule that its antiquity must in every case be carried back to a period beyond the memory of men. It would depend upon the circumstances of each case and the antiquity must establish before the custom can be accented. In my opinion no definite rule should be laid down as to the length of user of enjoyment which must be proved before local custom may justifiably be inferred.
14. I do not like to create perplexity in the already uncertain character of customary law by referring and discussing to all the decisions cited above. Some of the decisions might be of exceptional character and they in my judgment could hardly be regarded as indicating any rule of custom of general application as against numerous instances of a contrary character. Therefore I refrain from discussing them.
15. The custom in the instant case, if there be any, is only a recent commencement. Though the finding of the Court of appeal below as to the user of the pathway for about 28 years is perverse, as it overlooks other evidence which substantiates that the defendants have not used the pathway before 1949, I am of opinion that the Court of appeal below rightly has come to the conclusion that the evidence falls short of the proof of the customary right, claimed by the defendants and by the villagers.
16. The argument advanced by Mr. Bakshi on behalf of the defendants is not quite in the shape and form in which it is pleaded. On the materials on record it cannot be held that the defendants have acquired any right by prescription or adverse possession. There is an alternative pathway besides the disputed one. Mr. Bakshi could not rightly press the point of limitation. It would be inaccurate and slip shod to speak of the doctrine of lost grant, agrees Mr. Bakshi.
17. For these reasons, there is no substance in this appeal, which is accordingly dismissed. In view of the particular circumstance of this case, there would be no order for costs.
18. Leave under Clause 15 of the Letters Patent is refused.