1. This appeal arises out of a suit for establishment of a right of way and for other reliefs.
2. The plaintiffs alleged that they and their predecessors before them had enjoyed the right of way peaceably, openly, as of right and without interruption for about a hundred years, and prayed for establishment of their ancestral right of way, 'a right by possession for a period over the period of limitation, or a right of easement by user and necessity.'
3. The defendants pleaded inter alia that the plaintiffs had no right of way. The Court of first instance held that the pathway beyond 3 cubits in width had been obstructed for seven years before the suit and apparently treating the suit as one under Section 26 of the Limitation Act, held that such portion of the claim must be dismissed, but gave a decree for a right of way to the extent of 3 cubits in width in respect of which the plaintiffs had proved user within two years of the suit. Both parties appealed to the lower Appellate Court and that Court held that the right of way had boon in existence from 1839 and that the same clearly proved a 'right by grant or otherwise an ancient right of way for the plaintiffs in the disputed land, and a right independently of the right by user or easement right given by the Limitation Act' and that the 'plaintiffs' right was not dependent on the evidence of 20 years user and user within two years of the suit,' and accordingly decreed the appeal of the plaintiffs.
4. The defendant has appealed to this Court and it has been contended on his behalf, that the plaintiffs having claimed a prescriptive right of way, the Court of Appeal below is wrong in giving them a decree on the basis of a 'grant or ancient right,' that the defendant had no opportunity of meeting a case of grant which was not set up in the pleadings, nor raised in the issues, and that as such, he was prejudiced,
5. Now, the evidence adduced by the plaintiffs showed the enjoyment of the right since 1839 i.e., for a period of over 70 years. The Court of Appeal below, therefore, was right in referring such long enjoyment to a legal origin and in presuming a grant. The only question is whether the plaintiffs were prejudiced. No doubt, in claiming a right of way the plaintiff should state whether he claims the right by prescription, or grant, or in any other way and the defendant should know by which title the plaintiff claims the right, as otherwise he might be seriously embarrassed,
6. In the present case the plaintiffs, it is true, did not in the plaint state that they claimed the way under any kind of grant but neither did they state that they claimed it under Section 26 of the Limitation Act. Though the particulars set out are those which are required for establishing a right under the statute, the facts, which if proved would raise a presumption of grant or other legal origin, were also stated in the plaint. The issue raised, viz., whether the plaintiffs had any right of easement, was sufficiently wide and the plaintiffs adduced evidence to show that they had been in enjoyment of the right for about 70 years--evidence which would lead a Court to refer such enjoyment to a grant or other legal origin. The defendant had, therefore, notice of such a claim before adducing his evidence, and it does not appear that he complained before the lower Appellate Court that he had been taken by surprise. The plaintiffs adduced documentary evidence, which in the opinion of the Subordinate Judge was 'unimpeachable' and extending over 70 years. We are not satisfied, having regard to all the circumstances of the case, that the defendant has really been prejudiced.
7. The appeal is dismissed but we make no order as to costs.