1. This appeal is by the plaintiff. The suit was one for Khas possession and in the alternative for declaration of right of way in respect of what appears to be a lane or passage between the houses of the plaintiff and the defendant.
2. The title claimed was not seriously pressed before the Munsif and he found against the plaintiff, and from then the case has proceeded as one for declaration of a right of way. The suit was dismissed in both Courts. The Munsif found that the plaintiff's user did not go back beyond the year 1304. On appeal the learned Judge did not discuss this point but dismissed the suit taking the view that the plaintiff could not acquire an easement against his landlord, the defendant being the landlord or one of the landlords of the plaintiff.
3. It is now argued that the plaintiff has been in his holding since the year 1278 and the defendant got his holding in tenancy right some 12 or 14 years before suit and he acquired the landlord's right in the year 1315. On this it has been argued that the right by prescription had been acquired by the plaintiff before the defendant acquired the landlord's right and, therefore, that right could not be affected by the subsequent acquisition of the landlord's right by the defendant, and it is further argued that the defendant was only a co-sharer landlord and, therefore, the rule that the tenant could not prescribe against his landlord did not apply. The respondent's answer to this argument would seem to be a good one, namely, that though the defendant only acquired the landlord's right in 1315, the plaintiff in claiming to acquire a right by prescription is claiming the right by prescription against the previous landlord, the defendant's predecessor, and that also he could not do. Now although the plaintiff could not acquire an easement as against his landlord, it is possible that he may be entitled to a right of way if he can prove that there has been such long user as to justify the presumption of a grant, as explained in the cases of Madan Mohan v. Kashi Bhusan 31 Ind. Cas. 549 : 19 C.W.N. 1211 at p. 1214 and Augrahit Napit v. Nabnatannessa Bibi 49 Ind. Cas. 798 : 29 C.L.J. 51. The Munsif found against such length of user, but the learned Judge has not expressed any opinion on that point.
4. The result, therefore, is that there must be a remand to the lower Appellate Court for a finding on that point, namely, whether the plaintiff has succeeded in proving such long user as would justify the prescription of a grant. As there is evidence already on the record with regard to the length of the user, the finding must be arrived at on the evidence already on the record. The Appellate Court will return its finding to this Court within one month of the receipt of the record in the lower Court.
5. Costs of this hearing will abide the result.