Banerjee and Rampini, JJ.
1. This appeal arises out of a suit for the declaration of a right of way, and for the removal of certain obstructions alleged to have been made by the defendants.
2. Three points have been raised by the learned Vakil for the plaintiff appellant. First, that upon the findings arrived at by the Lower Appellate Court, the plaintiff was entitled to a decree quite irrespective of Section 26 of the Limitation Act, on the ground that the claim was one that the plaintiff was entitled to make under an implied grant presumable from what is known as: 'Disposition of the owner of two tenements;' secondly, that the Lower Appellate Court is in error in throwing upon the plaintiff the burden of proof upon the question whether the user was 'as of right;' and, thirdly, that upon the findings arrived at by the Lower Appellate Court, even if the plaintiff was not entitled to a right of way for marriage and funeral processions, he was at least entitled to an ordinary right of way.
3. In support of the first contention raised, it is argued that as the tenement belonging to the plaintiff, and the tenement over which the right of way is claimed, belonged originally to one and the same person, and as it has been found that the original owner of the land over which the way is now claimed used it as a way for purposes of ingress to and egress from the other tenement now belonging to the plaintiff, the plaintiff must be held to be entitled to the way in question, and the case of Charu Surnokar v. Dokouri Chunder Thakoor (1882) I.L.R., 8Cal., 956, is relied upon as supporting the appellant's view. We are, however, of opinion that the contention is not sound, and that the case cited is distinguishable from the present. The presumption in favour of the grant of an easement upon the severance of a heritage by its owner into two or more parts arises primarily with reference only to continuous and apparent easements; and a 'way' is evidently neither a 'continuous' nor always an 'apparent' easement.
4. It is true that in certain cases referred to in text books on the subject--See Gale on Easements, 6th edition, pp. 108 to 123 and Goddard on Easements, 5th edition, pp. 174 to 186, implication of a grant of an easement, upon the severance of a tenement, has been held to extend, under certain circumstances, to a 'way,' but that is so only where there has been some permanence in the adaptation of the tenement, from which continuity could be inferred. In other words the extension of the rule can hold good, if at all, only in the case of 'a formed road,' to use the language of Lord Justice Fry in Thomas v. Owen (1887) L.R., 20 Q.B.D., 225 (231), 'made over an alleged servient tenement, to and for the apparent use of the dominant tenement.'
5. Now, in the present case, not only is there no finding of fact that there has been any such permanence of adaptation, any such formed road, but there was no case of an implied grant from the severance of a heritage made or even suggested in the plaint or in the issues. Nor was the case put upon a ground like this in either of the Courts below.
6. That being so, we do not think that the first contention is at all tenable.
7. It was argued that even if the findings arrived at by the Lower Appellate Court be not sufficient to entitle the plaintiff to a decree, as the Lower Appellate Court has not considered the question whether a grant could not be implied from the severance of the original tenement into two, the case ought to be remanded to that Court in order that it may be dealt with from that point of view, and it was urged that the case cited, Charu Surnokar v. Dokouri Chunder Thakoor (1882) I.L.R., 8 Cal., 956, was an authority in favour of the appellant. But, as we have said above, that case is quite distinguishable from the present, for there the way claimed was one leading to a ghat, and the way or path and the ghat were alleged to have been constructed by the original owner; and so there was a sufficient case made in the pleadings for the implication of a grant upon severance of the tenement by reason of the alleged permanence of adaptation evidenced by the construction of the way and ghat.
8. It is not, however, suggested in this case that the way claimed by the plaintiff is a metalled way, or is anything but an undefined track over a strip of land.
9. As to the second contention raised on behalf of the appellant we do not think that it arises in this case. For the learned Subordinate Judge, after having said in his judgment that he entertains doubt regarding the correctness of the proposition, that the burden of proof upon the question whether the user was as of right, lay upon the party who alleged that it was not as of right, goes into the entire evidence bearing upon the question, and upon a consideration of the evidence adduced on both sides comes to the affirmative finding that the user was permissive. And if the second contention fails, it is conceded that the third contention must also fail.
10. The contentions urged before us, therefore, all fail, and this appeal must be dismissed with costs.