JUDGMENT
1. In the suit which is the subject matter of this appeal the plaintiffs claimed that there is a footpath used by the villagers of Jarudih over the area comprised of plots 192, 194, and 191 which had been purchased by the defendants from Subodh Kumar Mukherji and over which the defendant has been constructing a building. The case of the plaintiffs was that they were residents of village Jharudih and that they have a right of way over the path in question which connected the village road running through the bustee of Tharudih and connecting with a pucca District Board road known as Luby Circular Road.
According to the plaintiffs the pathway was adjacent west to the north of plot No. 3222 and also adjacent south of plots 193, 195 and 200 of mauza Hirapur and that the path was 9 feet wide. The suit was contested by the defendant who alleged that the plaintiffs had no customary right of way and that she had purchased the land from Sri Mukherji for the purpose of constructing a girls school and that the building has already been partly erected. The trial court dismissed the suit on the ground that there was no proof of customary right established by the plaintiffs.
The trial court also discussed the question of the existence of the footpath and after considering the evidence of the Municipal Commissioner that the footpath was only 1 foot wide and also the evidence of other witnesses came to the finding that there was evidence that there was a footpath on the disputed land since long before the purchase by the defendant and that the footpath was of a very narrow width. The lower appellate court, affirmed the finding of the trial court with regard to the existence of the footpath and further found that the plaintiffs’ customary right over the pathway was established and, therefore, they were entitled to a decree declaring that they had established a customary right over the pathway in question.
2. In support of this appeal the argument put forward by the learned Government Advocate is that there is no material in the case to support the finding of the lower appellate court that there was proof of customary right of passage over the disputed land. In our opinion the argument on behalf of the appellant is well founded and must prevail. In the first place there is the important fact that though the plaintiffs claimed that there was a path 9 feet wide over the disputed land, the evidence of the Municipal Commissioner, D.W. 2 is that the path was only 1 foot wide and that evidence has been accepted by the trial court, and the lower appellate court has not reversed that finding with regard to the dimensions of the path.
The trial court found that the pathway was used not as a matter of right and the defendant had no knowledge of the use of the pathway by the villagers. The lower appellate court has also affirmed the finding of the trial court that the defendant did not know of the existence of the pathway nor did he know the use of the pathway by the villagers. Neverthless the lower appellate court reversed the finding of the trial court and came to the conclusion that there was a user of the passage as of right and in this connection referred to the circumstances that the land was not cultivated by the defendant and so there must be a presumption that the passage was used by the neighbouring villagers as a matter of right. The relevant passage from the judgment of the lower appellate court is reproduced below :
“That would be in my opinion a wrong view of things and can be applicable only to such cases where the lands which are capable of being cultivated are actually cultivated for a period and during the cultivation seasons some sort of obstruction is raised but at others the trespassers are allowed to pass and repass without any let or hindrance from the owner. But in case where the lands in spite of being cultivable are not cultivated at all it would have to be presumed that the owner in deference to the rights created by the user does not seek and obstruct and cultivate the lands. In such circumstances the very non-interference of the owner would be the proof of the user as of right and if that view is adopted in this case there would be sufficient ground to hold that the user of the pathway was as of right and a customary right of way grew in favour of the plaintiffs.
In my opinion the learned Munsif was not correct in holding that the plaintiff has not proved, that the lands have been used as a pathway as of right. That they had done so is proved from another fact. Mr. Pal had purchased a portion of the lands belonging to the plaintiffs vendors. Now Mr. Pal has evidently done so with the intention to build a house on it. He could not have purchased it without an access to it and there would be no access excepting the disputed pathway. At the time of the sale, therefore, it was known to him and must have been represented to him that the disputed land was a pathway which has been used for a long period as such.
This also established that it was known, to everyone in the village that the path was being used as of right and the learned Munsif was in error in considering that the plaintiffs have not been able to show that the user was of right and, therefore, no customary right ag is required to be established in India has been established in this case. In my opinion the proof of non-interference as shown by the plaintiffs evidence is proof of the fact in this case ‘that the user was as of right and non-interference cannot be considered to be mere granting of permission as has been held by the Munsif. The non interference not only amounted to a permission but also amounted to non-exercise of a right that the owner had of cultivation.”
In our opinion, the reasoning of the lower appellate court on this point is perverse and it is wrong to say that merely because there was no cultivation of the disputed land there was a presumption either in law or in fact that there was a user of the pathway by the villagers as a matter of right. In this connection it is apposite to refer to (he judgment of this High Court in Nasiruddin v. Deokali, AIR 1929 Pat. 124 where it was pointed out that mere user for a long period of the property will not give rise to the presumption that the claim as a user was as a matter of right, because of the special circumstances prevalent in India. At page 125 of the report the learned Judges state :
“In English law the exercise of a right of way and similar positive easements for a prolonged period gives rise to the presumption that such exercise was of ‘right’ that is to say, it is presumed that the right of passage was exercised without any permission, express or implied on the part of the owner of the servient tenement. This is because social conditions and the nature of landed property in England are such that land owners are particularly jealous of their exclusive right and the familiar appearance of the notice boards to be seen in England bearing the inscription trespassers will be prosecuted is an indication of the views held by the owners of property.
Accordingly, it is to be presumed that if the owner of the dominant tenement has for a long period passed over the servient tenement that he did it from the beginning with a claim of right for it is unlikely that if he had not such a right that the owner of the servient tenement would have allowed him to pass. In India, however and it may be in other countries where such views of the ex-clusiveness of landed property do not prevail a mere period of long user will not give rise to the presumption. It is customary for the owner of a piece of waste land not to raise any objection to the passage of strangers over such land.
It was pointed out by the Calcutta High Court, in the leading case of Shaikh Khoda Buksh v. Shaikh Tajuddin, 8 Cal W.N. 359 that in such circumstances mere long user gives rise to no such presumption as is to be inferred in England and that whether or not long user creates the presumption that its beginning was founded on a claim of right will depend upon the locality the customs of the people and it may be the relationship between the respective owners of the dominant and servient tenements.”
3. There is also another important circumstance which the lower appellate court has failed to notice in reaching the finding with regard to the customary right. It is admitted that in the survey record or rights there is no mention of the customary right over the disputed land. It is not the case of the plaintiffs that the customary right grew up after the publication of the record of rights; on the contrary the case in the plaint was that the customary right was in existence from time immemorial; and if that was true, there is no reason why the right was not entered in the Survey record of rights.
Reference was made in this connection on behalf of the appellant to Section 81 Clause (1) and Section 81, Clause (n) of the Chota Nagpur Tenancy Act which imposes a duty on the survey authorities to record any easement attaching to the land for which the record of rights has been prepared and also the existence, nature and extent, of the right of any person in the area to which the record of rights applies. The omission of the right claimed by the plaintiff in the Survey record of rights is, therefore, a relevant matter for consideration in examining the evidence with regard to the customary right claimed by the plaintiffs.
As pointed out by the Privy Council in Lakshmidhar Misra v. Rangalal, ILR 29 Pat 1 : (AIR 1950 PC 56), the question of customary right is not a question of fact but is essentially a mixed question of fact and law; and in the present case, having examined the judgments of both the lower courts we are satisfied that the plaintiffs have not established that there is a customary right over the pathway in dispute and the user of the pathway was a user by the plaintiffs as a matter of right.
4. Accordingly we hold that the decree of
the lower appellate court must be set aside and the
suit of the plaintiffs must be dismissed. We accordingly allow this appeal. The parties will bear
their costs throughout.