1. Defendant 1, in a suit which was instituted by the plaintiffs for declaration of a right of way over an alleged 'gopat', is the appellant in this appeal. The suit was dismissed by the trial Court but had been decreed by the Subordinate Judge on appeal in a modified form. The 'gopat' which forms the subject matter of the suit will appear from the Commissioner's map which is to be found on the record and the portion of it which has a direct bearing on the case is marked in that map as lying between stations 1 and 16. Although I am not prepared to interfere with the decision which is complained of in this appeal, I must say that I am unable to disagree with the learned advocate for the appellant in his submission that the Subordinate Judge has fallen into an error in dealing with the case in so far as it is a question of the exact nature of the right which had to be determined. The suit was instituted by the plaintiffs on their own behalf and also on behalf of all the inhabitants of certain villages. The averments in, the plaint were that the 'gopat' in question was a village pathway through which the aforesaid villagers of the several villages had a customary right to pass and curiously enough it was also stated that they
had been using the same for a period of upwards of 20 years, that is to say, since time immemorial.
2. In the alternative there was an averment as regards the 'gopat' being one in which the said villagers had a right of way as of necessity. The trial Court, as already observed, dismissed the suit. Its findings were that to the extent of the pathway that lay between stations. 1 and 6 such a 'gopat' did exist but that it was only a private path used by the neighbours of defendant 1 and that the villagers in general had actually no right of user in respect of it and as regards the portion lying between stations 6 to 16, that portion was of much lesser width and was actually in the nature of an ail in respect of which also the plaintiffs had no right of user at all. The trial Court appears to have disbelieved the oral evidence that was adduced in respect of the plaintiffs' case as regards the customary right and right of user as of necessity. The Subordinate Judge in the opening paragraph of his judgment set out the plaintiffs' case quite correctly saying that the pathway was claimed by the plaintiffs on their own behalf as well as on behalf of the other villagers of the middle para of village Jaipasha and that their case was that they had been using it from time immemorial and also that they claimed the pathway as an easement of necessity. When discussing the evidence in his judgment he referred to the evidence of a number of witnesses examined on behalf of the plaintiffs and observed that it was clear from their evidence that the plaintiffs and the people of Maijpara had been using the pathway for over 20 years as an easement and as of right. He then proceeds to consider the nature of the user and after having dealt with it in certain subsequent paragraphs of his judgment he came to the conclusion that the contention that was urged on behalf of the defendant to the effect that such user on the part of the plaintiffs as there was in respect of the 'gopat' was of a permissive character and disposed of that contention as being untenable and he also found that the plaintiff's had only the right to pass over the disputed pathway with or without loads and to use it to bring their womenfolk in palanquins. The learned Judge thus negatived a material part of the plaintiffs' case which was to the effect that they could take plough cattle over the 'gopat' and indiscriminately use the gopat for taking conveyances and things of that kind over it. The Subordinate Judge also found that there could be no question of any easement by way of necessity there being other paths through which the plaintiffs could reach the fields to go to which they have been asking for this gopat. In the light of findings thus arrived at the learned Subordinate Judge made a modified decree in favour of the plaintiffs.
3. The appellant has not been slow to take advantage of the error into which the Subordinate Judge has fallen by referring to an 'easement' which in his opinion had been established by evidence adduced in view of the statements which they had made and which according to him showed that there had been user as of right, etc., for a period of over 20 years. 20 years have got very little to do with the question of the right that was claimed by the plaintiffs in the case. It was clearly a customary right in respect of a village pathway which, as has been clearly pointed out in the case of Ali Mohammad v. Katu AIR 1923 Cal 200, must be established by proving
a local custom by which the residents or any section of them of a particular district, city, village or place are entitled to use the land not belonging to or occupied by them, and to do acts in respect thereof which if there was no such custom would be acts of trespass.
4. It has been also pointed out in that case that
such custom must be proved by reliable evidence of such repeated acts openly done which have been assented and submitted to as lead to the conclusion that originally by agreement or otherwise the usage had become the customary law of the locality.
5. The reference of 20 years therefore is certainly unhappy and perhaps also misleading. In view of the argument which has thus been advanced on behalf of the appellant and with which I entirely agree it becomes necessary for me to look into the evidence. Mr. De has referred me to the evidence of five witnesses for the plaintiffs upon which the learned Subordinate Judge appears to have relied in his judgment and which evidence he seems to have entirely believed. Mr. De's contention is that it is not so very clear from the judgment of the learned Subordinate Judge that he is prepared to believe the evidence of those witnesses in so far as it seeks to establish user for a period of over 20 years and that it is not an unreasonable inference to make, having regard to the fact that the evidence of those witnesses in respect of user by the taking of conveyances and cattle has not been accepted by the Subordinate Judge, to hold that he accepted the evidence of those witnesses only to the extent that it went to establish that the user was for a period of 23 years or so. Having read that evidence I have come to the conclusion that such a contention is not possible. The whole object of the plaintiffs in leading evidence in the case appears to have been to establish that the right was being exercised from time immemorial. There is evidence of the plaintiffs to the effect that the pathway had been used by these villagers for about 200 years. The witnesses have strenuously stated the user to have been for 50 years or periods of a like character. Having regard to this evidence which the Subordinate Judge seems to have accepted in its entirety in so far as the length of the user is concerned, his finding as regards the right of the plaintiffs may, in my opinion, be justly read as amounting to this: that evidence points to a customary right having its origin in some sort of an agreement which gave rise to that right.
6. On the whole therefore I think it would not be right for me to interfere with the decision of the learned Subordinate Judge though technically speaking it is open to the criticism which has been levelled against it by the learned advocate who had appeared on behalf of the appellant. The result, in my opinion, is that the appeal must be dismissed, but having regard to what I have already said I shall make no order as to costs in favour of the respondents.