1. This second appeal is directed against an appellate order dismissing the appellant's suit for the establishment of a right of way. The lower Appellate Court found that the user proved had been infrequent, especially of late; further that the path over which the right of way was claimed lay through the respondents' homestead and near a tank used by the female members of the latter's family; and finally, that the predecessors of the appellants had, for sometime in the course of the last 20 years, lived in one of the servient tenements. From these facts, the learned Subordinate Judge inferred that the user had been permissive and not as of right; and he further pointed oat that there was no evidence adduced by the appellants to show that they had ever exercised the right of way as of right.
2. On behalf of the appellants, it has been argued that the learned Subordinate Judge has made two mistakes of law. In the first place, it is suggested that he ought to have presumed, as soon as he found that there had been actual user, that the user was of right. We are unable to yield to this contention. As pointed out by Mr. Justice Banerjee in Shaikh Khoda Buksh v. Shaikh Tajuddin 8 C.W.N. 359 at p. 360 whatever may be the law in England, it is certain that under Section 26 of the Indian Limitation Act, which is the law in force in India, the right which the appellants claim must have been used as of right and it was for the plaintiffs who sought to establish such a right, to show that this requirement of the law had been satisfied. We think, therefore, that there is no mistake in this respect in the judgment of the lower Appellate Court.
3. The remaining contention of the appellant is that the learned Subordinate Judge has misdirected himself in a certain passage in his judgment: 'The pathway claimed' writes the learned Subordinate Judge 'lies through the court-yard of the defendants' bari close by their dwelling house and kitchen and not far off from a tank used by the female members of their families, in my opinion, the user of such path should always be presumed to be permissive until the contrary is proved.' No doubt, this dictum is rather widely expressed; but it seems to us that the learned Subordinate Judge did not intend to lay down any general rule, but that all he meant was that, where the facts are such as are found in this case, the inference prima facie seems to him to be that the user was permissive and not as of right. And we cannot say that this finding of fact is opposed to any principle of law.
4. The result is that this appeal must be dismissed with costs.