1. This is an appeal by the defendants against the judgment and decree of the Subordinate Judge of Burdwan, dated the 4th June, 1923, by which the decree of the Munsif, First Court of Burdwan, dated 29th August, 1922, was confirmed. The suit out of which this appeal arises was for declaration of the right of way by the plaintiffs in their representative character of the inhabitants of the village for whom this right of way was claimed. The plaint describes this pathway as belonging to the villagers and the plaintiffs allege that the pathway was used for access to a tank the water of which was used for drinking and bathing purposes by the villagers and also for the passage of carts. One of the contentions of the defendants was that the suit was not maintainable without proof of special damage as the pathway according to the plaintiffs' case was a public pathway. On the merits the existence of the pathway was denied. The Munsif raised numerous issues and the 11th issue ran as follows: 'Can the suit proceed without the plaintiffs suffering any special damage.' The 13th issue, was: 'Have the plaintiffs got any right of way over the disputed land? If so, what is the breadth of the way?' Both the Courts have found that the pathway exists and that its breadth was 3 cubits. On the 11th issue the learned Munsif said as follows: 'I would take up these issues that is 13 and 11 as they are pressed. It was laid down in Harihar Das v. Chandra Kumar Guha 49 Ind. Cas. 79 : 23 C.W.N. 91 that infringement of a village pathway in which the plaintiffs got a right with the villagers' by reason of a grant implied from long user does not require proof of special damage to give rise to a cause of action.' There was an appeal by the defendants and cross-appeal by the plaintiffs as to the width of the pathway. In deciding the appeal by the defendants, the learned Subordinate Judge says that the only point for decision is whether the plaintiffs have got any right of way over the disputed land, if so, what is the breadth of the same. The learned Subordinate Judge decided this point and he agreed with the Munsif on his findings on these issues.
2. The learned Advocate who appears for the appellants in this second appeal urged only one point before me, namely, that the suit was not maintainable as the learned Subordinate Judge has found that it was a public pathway and that the plaintiffs have proved no special damage to maintain the suit. No other question was raised or pressed in this second appeal. As it appears from the judgment of the learned Subordinate. Judge it does not appear that the point now urged before me was argued before him. The learned Advocate for the appellants relies upon the affidavit sworn by one of the Pleaders for the appellants in the Court below to show that the point was urged before the learned Subordinate Judge. The question really turns upon the finding of the learned Munsif as to whether the pathway was a village pathway or not. No doubt, the learned Subordinate Judge speaks of the pathway as a public pathway, but it appears that the finding of the learned Munsif that the pathway was a village pathway was not questioned before the learned Subordinate Judge. Assuming that the finding of the learned Munsif that the pathway was a village pathway is correct, it appears to me that on the authorities the suit as it was framed was maintainable. I would only refer to the case reported as Harihar Das v. Chandra Kumar Guha 49 Ind. Cas. 79 : 23 C.W.N. 91 and the case reported as Harish Chandra Saha v. Pran Nath Chakraverty 69 Ind. Cas. 910 : 26 C.W.N. 587, which follows the earlier case. The case relied upon by the learned Advocate for the appellants reported as Bati Ram Kolila v. Sibram Das 61 Ind. Cas. 405 : 25 C.W.N. 95 is not, in my opinion, applicable to the facts of the present case. The learned Advocate for the appellants asked me to remand this case for a finding by the Subordinate Judge as to whether the finding of the Munsif that the pathway was a village pathway was correct or not. In the circumstances of this case I do not think that I ought to remand this case at this stage for a finding upon that question. It appears to me that even if the point was taken before the lower Appellate Court, it was not seriously pressed, otherwise the learned Subordinate Judge would have noticed it.
3. The result, therefore, is that this appeal fails and is dismissed with costs.