1. This is an appeal by the defendants in a suit for declaration of a right of way, for removal of an obstruction thereto, for a permanent injunction and for incidental reliefs. The plaintiff set up a claim to use the pathway for several purposes, namely, (a) to obtain, access to a public road across sand dunes which lie towards the north of his homestead, (b) to enable his workmen to bring materials for the repair and construction of houses, (c) to enable his sweepers to remove night soil, and (d) to take his cattle to the field. The defendants denied the existence of the alleged way and pleaded the bar of limitation. The trial Court decreed the suit. Upon appeal, the Subordinate Judge held that there was ample evidence to prove that the inmates of the house of the plaintiff had, for a period much exceeding 20 years, used the way for access to the sand dunes where they went to answer calls of nature; but he was not satisfied with the evidence as to the user of the pathway by sweepers, labourers and cattle. In this view the Subordinate Judge modified the decree of the primary Court and limited the declaration of the way for use by the inmates of the house of the plaintiff as a passage for access to the sand dunes on the north of the land of the defendants. The defendants were not satisfied with this partial success and have appealed to this Court, substantially on the ground that the facta found are not sufficient to justify the declaration of a prescriptive right of way under Section 26 of the Indian Limitation Act.
2. To enable a plaintiff to establish that he has acquired, under the Statute, an absolute and indefeasible right of way, he must prove that the way has been peaceably and openly enjoyed by a person claiming title thereto as an easement and as of right, without interruption, and for twenty, years. The Subordinate Judge has found that in this case the user extended over a. period much longer than 20 years, that the right was peaceably and openly enjoyed, without interruption, as an easement and not on account of any proprietary interest in the land and that no permission was obtained from the defendants or their predecessors. The plaintiff must accordingly be deemed to have acquired an absolute and indefeasible right of way.
3. The question next arises whether, as required by the Statute, the period of 'enjoyment' for twenty years ended within two years next before the institution of this suit; for the plaintiff cannot succeed merely by proof of enjoyment for twenty years; he must show also that such enjoyment ended only within two years before suit: Gopee Chund v. Bhooban Mohun 23 W.R. 401 Luchmee; Pershad Narain Singh v. Tiluckdharee Singh 21 W.R. 295 and Janhavi Chowdhurani v. Bindu Bashini Chowdhurani 26 C. 593; 3 C.W.N. 610; 13 Ind. Dec. (N.S.) 681. Upon this point, the Subordinate Judge is not explicit. In the eighth paragraph of the plaint, filed on the 19th March 1915, it was alleged that the defendants made the first attempt at obstruction on the 13th Match and built the wall across the path three days later on the 16th March, thereby preventing the plaintiff from using the disputed way. In the written statement, although the right of way was denied, the assertion that the wall had been erected on the date mentioned was not expressly challenged. The Court of first instance found that the wall was erected in March and held that no question of limitation consequently arose. This finding does not appear to have been impugned before the lower Appellate Court. The position, then, is that the plaintiff acquired an absolute and indefeasible right of way by 'enjoyment' for the statutory period; there was no discontinuance of the 'enjoyment' by reason of an obstruction by the defendants, till within a few days previous to the institution of this suit, and there is no suggestion that the plaintiff voluntarily abandoned or discontinued the exercise of the light at any time before such date. In these circumstances, it is not necessary for the plaintiff to prove affirmatively 'actual user' of the way down to a date within two years before the suit: Sham Churn v. Tariney Churn Bamrjee 1 C. 422 at p. 430 ; 25 W.R. 228 ; 1 Ind. Dec (N.S.) 264; Koylash Chunder Ghose v. Sonatun Chung 7 C. 132 ; 4 Shome L.R. 144; 8 C.L.R. 281; 5 Ind. Jur. 642; 3 Ind. Dec. (N.S.) 635; Vinayak Moreshwar v. Martand Trimbak 6 Bom. L.R. 287 and Ghulam Muhammad v. Gulsher Muhamed Khan 38 P.R. 1886. A person may, without violence to language, be said to be in 'enjoyment' of a right of way during a period of time, though he does not actually 'use' the way every moment As explained by Garth, C.J., in Sham Churn v. Tariney Churn Banerjee 1 C. 422 at p. 430 ; 25 W.R. 228 ; 1 Ind. Dec (N.S.) 264 mere non-user, for a time, of an easement which the owner might, if he pleased, enjoy during every hour of that time, but which, for some good reason, he does not care to enjoy, is not necessarily discontinuance of enjoyment of the right; for instance, where the owner of a house does not use a way to it because the house is for a time unoccupied, or where a farmer desists for a time from using a pasture because he happens to have no pasturable cattle or because the herbage is scanty or unwholesome by reason of drought or like cause, each may still be considered as in 'enjoyment' of the right of easement. This distinction between 'enjoyment' of aright of easement and actual exercise' of the right was overlooked in illustration (b) to Section 26 of the Indian Limitation Act, 1877, [as was pointed out by Garth, C.J., in Koylash Chunder Ghose v. Sonatun Chung 7 C. 132 ; 4 Shome L.R. 144 ; 8 C.L.R. 281 ; 5 Ind. Jur. 642 ; 3 Ind. Dec. (N.S.) 635 which was consequently not reproduced in the Indian Limitation Act, 1908]. To put the matter briefly, cessation of user is not always inconsistent with continuance of enjoyment of aright Janhavi Chowdhurani v. Bindu Bashini Chowdhurani 26 C. 593 ; 3 C.W.N. 610; 13 Ind. Dec. (N.S.) 681. or, in other words, cessation of user is not an invariable indication of abeyance of enjoyment of a right. This was recognised in Carr v. Foster (1812) 3 Q.B. 581 ; 2 G. & D. 753 : 11 L.J.Q B 284 ; 6 Jur. 837; 114 E.R. 631 ; 61 R.R. 321 in which it was ruled that where a commoner had ceased to use the common during two years of the thirty (as he had no commonable cattle at the time), but had used it before and after, the Jury was justified in finding a continued enjoyment of the right during thirty years. See also the decision of the Judicial Committee in James v. Stevenson (1893) A.C. 162 ; 62 L.J.P.C. 51 ; 1 R. 324 ; 68 L.T. 539 and of Lord Chelmsford L.C. in Crossley v. Light ovler (1867) 2 Ch. 478 ; 36 L.J. Ch. 584 ; 16 L.T. 438; 15 W.R. 801. In our opinion, the disputed way was 'enjoyed' by the plaintiff as an easement within two years next before the institution of the suit.
4. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.