1. This is an appeal by the defendant and arises out of a suit for declaration of the plaintiffs' right of way over a piece of land described in the plaint and for removal of the obstruction placed at one end of it by the defendant. There is also a prayer for perpetual injunction for restraining the defendant from obstructing the said pathway. The defence of the defendant to the suit was that there was no such pathway as alleged in the plaint, nor has the right been exercised for a sufficiently long time in order to entitle the plaintiffs to acquire right either by prescription or under the other heads of claim to which I shall presently refer. The Munsif decreed the plaintiffs' suit declaring the plaintiffs' right of easement as claimed in the plaint and directing that the obstruction be removed in execution of the decree. The Munsif decreed in full the plaintiffs' claim. On appeal the Additional District Judge has modified the decree by restricting the right to use the pathway as a footpath. He has disallowed the claim of the plaintiffs to use the pathway as a cart track.
2. Against this decision of the learned Additional District Judge of the 24-Pargannas modifying the judgment of the Munsif the present appeal has been brought, and three grounds have been taken by Mr. Amarendra Nath Bose who appears for the appellant. The first ground which he takes is that the appellant has been considerably prejudiced by the Courts proceeding on the footing that the plaintiffs claimed a right to this way on the basis of immemorial user. His contention is that if it had been so pleaded he might have made suitable defences to the claim. It becomes therefore necessary to examine the relevant paragraph of the plaint to see if the claim was based on user from which it might be inferred that the user was much in excess of the period of 20 years prescribed by the limitation Act, or in other words, whether there were allegations in the plaint which would lead to the suggestion that the plaintiffs were basing their claim apart from prescription also on immemorial user. Para. 5 is the paragraph which gives the statement of facts on which the cause of action in the present suit is based. In the first part of that paragraph it is stated that the plaintiffs and their ancestors have been using the disputed land as a pathway as of right without interruption for 40 or 50 years, and having thus used it they have acquired a right of way over the disputed land.
3. It is stated in the second part that they have acquired also a right to this land as an easement of necessity; and thirdly it is stated that they having used the land at any rate for much in excess of 20 years without interruption and in their own right they have acquired easement of way over the disputed land. It is contended for the appellant that although the claim is rested on three heads the first and the third heads merely allege facts which suggest that the claim is founded on prescription and not on immemorial user. It is true and I think the comment is a fair one that the plaint is ill-drafted and does not in terms suggest that the right was founded on immemorial user. But to my mind it seems difficult to understand the three heads of claim unless one reads the first head as referring to facts which would lead to the inference of immemorial user from which a grant may be presumed. There is no point in stating that the land had been used by the plaintiffs and their ancestors for a period of 40 or 50 years unless it was intended to convey the impression that apart from the right which is acquired by user of 20 years they have acquired a right by very long user. The learned Judge while dealing with this question says this with reference to the argument that no case of grant was made in the plaint:
but the case of long user was certainly made though the words 'time immemoral' as the learned Munsif remarks were not used, and the existence of an ancient right derived from grant or otherwise is a presumption.
4. The pleadings in India have to be construed somewhat liberally notwithstanding the fact that lawyers in general in the mofussil now are more fully equipped than the average mofussil lawyers of half a century or more ago. Their Lordships of the Judicial Committee have made observations to the effect that pleadings of this country are not to be construed with the same strictness as pleadings in English Courts. It seems to me that although this plaint was drafted by a junior pleader it was revised as appears from the corrections made in the plaint by a pleader of considerable standing. It seems some what singular that the words 'immemorial user' were not used although facts were alleged to convey the impression that the plaint was founded on the case of immemorial user. It is difficult in the face of the case of Maharani Rajroop Koer v. Abdul Hossain (1881) 6 Cal 394 to say that the defendant should be given a further opportunity of meeting the case of immemorial user seeing that the plaintiffs did allege circumstances, namely, the user by themselves and by their ancestors of the land as pathway leading to Rai Bahadur's Road for 40 or 50 years. The Judicial Committee in the case to which I have just now referred made observations which are pertinent to the present controversy. Their Lordships stated:
The object of the statute was to make more easy the establishment of rights of this description, by allowing an enjoyment of 20 years, if exercised under the conditions prescribed by the Act, to give, without more, a title to easements. But the statute is remedial, and is neither prohibitory nor exhaustive.
5. A man may acquire a title under it who has no other right at all, but it does not exclude or interfere with other titles and modes of acquiring easements. Their Lordships think that in this case there is abundant evidence upon the facts found by the Court for presuming the existence of a grant at some distant period of time. The result of the facts which appear in evidence, and the effect of the judgments of the Munsif and of the Subordinate Judge, are thus stated in the judgment of the High Court:
The evidence shows, and the Courts appear to have found, that the pyne was constructed by the ancestors of the plaintiff a great many years ago, possibly fifty or sixty years certainly more than twenty years-for the purpose of irrigation; and there is part of the evidence which indicates that such construction was accompanied with certain advantages on the part of the defendants, which compensated them for any injury or inconvenience caused by the construction of the pyne.
6. This being an artificial pyne, conStructed on the land of another man at the distant period found by the Courts, and enjoyed ever since or at least down to the time of the obstructions complained of by the plaintiff and his ancestors, any Court which had to deal with the subject might, and indeed ought to refer such a long enjoyment to a legal origin, and under the circumstances which have been indicated, to presume a grant or an agreement between those who were owners of the plaintiff's mehal and the defendants' land by which the right was created. That being so, the plaintiff does not require the aid of the statute: and his right therefore is not in any degree interfered with by the provision in Section 27, upon which the Munsif decided. This question which has been raised by Mr. Bose assumes an important aspect as the defendant raised the plea of limitation under the statute and on the facts found it appears that the obstruction was much beyond two years of suit. The plaintiffs rested their case not only on prescription as I have said but on a liberal reading of the plaint on long user which might lead to the inference of lost grant. It is true that the effect of this somewhat ill-drafted plaint has been that the defendant had to pursue his remedies in the lower appellate Court as well as before this Court and there was some ground for his appealing both before the lower appellate Court and this Court. That really is a question of costs which I shall consider hereafter.
7. Mr. Bose has referred to a number of decisions where it has been held that the question of immemorial user or lost grant must be pleaded in every case before a person can be given relief on that head; and that no doubt seems to be so, as will appear from certain observations of the learned author in Gale on Easements 9th, Edn. 521. The learned author says:
As the right to an easement exists in respect of the dominant tenement the pleading usually states the possession of the tenement by the party, and that by reason thereof he was entitled to the right in question. That whether the action be brought against the servient owner or a stranger, a party cannot safely allege his right to an easement generally, but should state specifically the manner in which he claims title to the easement, whether by grant (actual or lost), prescription at Common law, or under the Prescription Act; and in many cases it is advisable to plead alternatively a title by all three methods.
8. The learned author further points out that according to modern practice a lost grant if relied on should be pleaded. In this connexion Mr. Bose also referred to Smith v. Baxter (1900) 2 Ch 138. If I was of opinion that the plaint could not be construed as containing the allegation of very long user much beyond the period of prescription as prescribed by the Limitation Act I would have remanded the case. It seems to me that it is really due to legal advice that the plaint has been so drafted. The facts are there and it would not be right to allow the defendant further opportunity for he has to meet the case of long user made in the evidence and indicated in the plaint. The user was ever since 1866 when this pathway was shown in a particular document to which the present defendant was a party and the finding is that the user has continued ever since. Of course the Munsif was not very happy in his expression when he says that the oral evidence adduced by both the parties furthers the view that there was such a path and it never came into disuse. I asked Mr. Bose whether there is evidence to show on behalf of the plaintiffs that the pathway was being used for this length of time, and he answered in the affirmative.
9. It is not necessary in this view to consider the second question raised in this appeal as to whether the plaintiffs can succeed on the ground of easement of necessity as according to the findings of both Courts there is not another though inconvenient way.
10. The third ground taken is that there is no determination of the question of the width of the pathway. I think there is evidence to show that the width of the pathway was 6 feet and the evidence points to this: that this has been the width ever since 1866. The learned Judge has restricted the pathway to its use as a footpath and to that extent the decision of the Judge is in favour of the defendant.
11. The appeal must be dismissed. Having regard to the observations which I have made that the plaint is not absolutely clear on the question of immemorial user it is just that the plaintiffs will not have costs either of this Court or of the lower appellate Court. Subject to this slight alteration as to costs the appeal is dismissed.