Fazl Ali, C.J.@mdashThis is an appeal from a decision of the District Judge of Cuttack confirming the decision of the Munsif of Jajpur. The nature of the suit which has given rise to this second appeal is described by the learned Munsif in his judgment in these words:
The plaintiffs representing the villagers of Barah-mabarda and Maheswarpur, etc., have instituted this suit to declare their right of way over the disputed lands Ka, Kha, Ga and Gha described in detail in the plaint schedule and demarcated in the plaint sketch. They claim to have acquired this right either by custom or by prescription of lost grant or as an easement of necessity as there is no other convenient pathway for the plaintiffs to take their ploughs, carts and cattle to their fields or to other places on the north.
2. The suit was resisted by defendants 1 to 4 and a number of pleas were taken, but the learned Munsif after reviewing the entire evidence in the course of an elaborate judgment held that the plaintiffs did possess the right which they claimed and decreed the suit. There was then an appeal by the defendants to the District Judge who disposed of the appeal by a very short judgment in which, after stating that some confusion had been brought into the case both in the lower Court and in his Court by by an unnecessary discussion of the various methods by which an easement could be acquired, he came to the conclusion that the respondents had proved by clear evidence that "they have been uninterruptedly exercising the right of way for over the statutory period." A perusal of this short judgment delivered by the learned Judge is sufficient to show that he has decided the case on the footing that what was claimed by the plaintiffs was a right of easement and such a right was governed by Section 26, Limitation Act, which lays down that certain rights of easement can be acquired if they have been peaceably enjoyed as of right and without interruption for twenty years.
3. It is contended in this appeal on behalf of the appellants that the learned Judge has approached the case from an entirely wrong point of view inasmuch as the right of way claimed by the public or a section of the public over certain lands, described as a village pathway, is not a right of easement and is not governed by Section 26, Limitation Act. In my opinion the contention is quite correct. The right of way of the description which is claimed in this case is not an easement but is a customary right and may also be traceable to dedication which may be inferred by user for a very long period. As has been pointed out in Gale on Easements (at page 14):
An easement must be connected with a dominant tenement. In truth, a public road or highway is not an easement. It is a dedication to the public of the occupation of surface of the land for the purpose of passing and repassing.... It is quite clear that that is a very different thing from an ordinary easement, where the occupation remains in the owner of the servient tenement subject to the easement.
4. If such a right is not an easement, then it follows that Section 26 does not govern its acquisition. As has been pointed out on behalf of the respondents, no fixed period of enjoyment is necessary in order to establish a customary right or such right as is claimed by the plaintiffs in this case. As the whole case had been dealt with from an entirely wrong point of view, I would set aside the judgment of the learned District Judge and send back the case to him for disposal according to law. It is to be clearly understood that the judgment of the learned District Judge has to be set aside merely on account of a clear error of law, and we express no opinion as to the merits of the case. Costs will abide the result.
Manohar Lall, J.
5. I agree. I desire to draw attention to the observation of Sir Montague E. Smith in delivering the judgment of the Board in Turner v. William Walsh (1881) 6 A. C. 636:
The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication, and the presumption, if it can be made, then is of a complete dedication, coeval with the early user. You refer the whole of the user to a lawful origin rather than to a series of trespasses.
6. Then in the next paragraph his Lordship refers to two cases where these principles were recognised. In particular the case in R. v. Petrie (1855) 4 E&B 737 is to be noticed because in that case though there was only seven years'' user without interruption of the road in question, the Court held that the Judge was right in directing the jury that they might from that user presume a dedication from an owner of the fee. In my opinion the Courts of fact must decide in each case whether the user which has been proved is such as to entitle them to raise a presumption of dedication or of lost grant. No particular number of years is necessary to enable the Court to draw the necessary inference. In Bholanath Nundi v. Midnapore Zamindary Co. (04) 31 Cal. 503 Lord Macnaghten who delivered the judgment of the Board, observed at page 81 that
on proof of the fact of enjoyment from time immemorial there could be no difficulty in the way of the Court finding a legal origin for the right claimed,
the right claimed was the right of pasturage, and the time immemorial was from the time of the Hindu Rajahs. The Court below will keep these observations before him when deciding the appeal.
