1983 PLP 272 (CLC)

(2) It is the only nearest and most convenient passage for going to the village abadi towards the north. (3) Plaintiff Fazal Karim has been using the passage for the last 30/40 years, whereas his brother Nazar Hussain has been using it for the last 10 years."

11. The learned counsel also referred to the case‑law, the relevant of which may be mentioned. In Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others (P L D 1961 Dacca 65), the Court held that in a case in which a right of way is claimed over certain land and defendants deny the existence of any such pathway, it is necessary that the location of the alleged pathway should be ascertained by a local investigation. It was held in Abdul Gaffar alias Sona Mia v. Abdus Sattar and another (P L D 1959 Dacca 491), that the basis of the right of easement by prescription is user of another man's land without any right till the user is ripened into a right by prescription. It is in the nature of an adverse possession though it does not partake of the character of adverse possession. In one case, the easement originates from a legal right, namely, grant, and in another case the right of easement accrues from user as of right, which means an adverse exercise of right as against the servient owner. The Court observed that "as of right" does not mean "rightfully" or an enjoyment without trespass and under a strict legal right but it refers to enjoyment by a person under a claim or an assertion of right. It went on to say that the acquisition of right may commence with an act which may be a pure act of trespass but the enjoyment, though it may continue to be a trespass, may nevertheless, be "as of right" so as to ripen into a prescriptive title.

12. In Raychand Vanmalidas v. Mankelal Mansukhbhai (A I R 1946 Bom. 266), it was thought necessary to prove that if the right was exercised as an easement, it is necessary to establish that it was exercised on somebody else's property and not as an incident of his own ownership of that property. Further, that it should be done consciously, treating it as somebody else's property, so as to establish that right as an easement. The learned Judge went on to say that in any case, it must be shown that the right was enjoyed as an easement, that is, as an assertion of a hostile claim of certain limited rights over some body else's property. Such an assertion cannot be held proved without satisfactory proof of the requisite consciousness. Prescriptive easement, as opposed to easement by grant, is always hostile. It is in fact an assertion of a hostile claim of certain rights over another man's property and as such it resembles in some respects the claim to ownership by adverse possession of property ; both are of hostile origin and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possession, the possessor must assert his own ownership, in the case of easement he must assert limited rights of user on a property and acknowledge its ownership in some one else.

13. In Tukaram Rajaram Suple and others v. Sonba Chindhu Mali (1), the Court observed :‑ "But, in my opinion, the principle of this case cannot be extended to every case of a right of way as Mr. Bobde wants me to do, so that, on plaintiffs leading evidence to prove uninterrupted user of a right of way for more than twenty years, the Court has straightway to draw a presumption that the user was as of right. In my opinion, it is for the Court to consider whether a presumption could be reasonably drawn looking to the circumstances of each case, such as the nature and character of the servient land, the relation between the parties and the circumstances and the manner in which the user has taken place."

14. In Salina fitendra Lal Sinha v. Ram Charan Gope and others (2), the Court held that "it is to be presumed, that if the owner of the dominant tene ment 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 :f he had, not such a right, 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 exclusiveness 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.

15. In Razi Muhammad Ishaq v. Abr;ul Maheed (3), the view taken was that since there can be no easement without animus, a mere passage by licence would not entitle the claimant to the right of easement unless he can prove that he has been doing that act as of right. The Court further observed that ; "The view of the learned District Judge that there was an easement of necessity is not sustainable in law, for, there is a passage to the North and the alternative route suggested by the plaintiff appellant even though it might be highly inconvenient, is available to the defendant respondent. An easement of necessity is not allowed for the reasons of convenience and in this view of the matter, I am supported by Ahmad Ali Fakhruddin Bohra v. Dhondba Dasrath Kalar A 1 R 1937 Nag. 179, as also by observation in paragraph 13 of Sajar All v. Abdul Hashim acrd another P I. D 1963 Dacca 201."

16. In view of the above, the plaintiffs must prove that: (a) the plaintiffs passed over a subservient tenement for more than 2 years; ;,`r .(b) the passing over was hostile and adverse to the right of the owner o ,; the subservient tenement; (c) the act of passing over was done consciously; (1) A I R 1959 Bern. 63 (2) A I R 1959 Pat. 475 (3) P L D 1975 Pesh. 82 (d) the Court must also look to the nature and character of the subservient land, the relations between the parties and 'the manner in which the user took place.

17. The evidence as discussed in paras. 7 to 10 above shows that the plaintiffs did not prove items (b) and (c) above. Rather, according to P. W. 1 the alternate passage used by the appellants after the disputed passage had been closed, was through the house of Muhammad Hanif, whereas appellant No. 1, as P. W. 3 stated, that it was through the house of Nazar Hussain appellant No.

2. Mangoo (P. W. 2) stated that the appellants were using the street in front of the house of Sadiq situate or the sou thern side of the house of Nazar Hussain appellant No. 2, to go to the village. He also stated that the disputed path was in fact a vacant site. All the D. Ws., on the other hand deposed that at the disputed portion, there was a kacha room or its remains and it is there that the `pacca' room was built. Some of them also stated that the appellants had another street to go to the village while others stated that there was no other path. The Local Commissioner at serial 2 of his conclusion (para. 10) reported that the disputed passage "is the only nearest and most convenient passage for going to the village towards the abadi north". The entir evidence is one way, deficient to prove the required position and in the other, it is conflicting and contradictory of each other. It is thus neithe proved that the appellant had earned a prescriptive right of way nor that there was no alternate passage.

18. Admittedly, the disputed path and the other properties are situate in a village. Normally, the land owners permit others to use their land for the purpose of passage. This is generally permissive act and the users C also do not treat it as a hostile act to the other tenement. This position has been stated in the judgment noted at para. 14 also. The appellants, therefore, should have produced same evidence as to item (d) in para. 16 above, so as to succeed. Thus I do not find any justification to disagree with the findings of the lower appellate Court. He also rightly ignored the unauthorised portion of the report of the Local Commissioner, who should not have gone beyond the commission assigned to him. The view taken by the lower appellate Court is also in accord with the view taken in Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others as already referred to in para. 11 above. In view of the above, there is no merit in this appeal which is dismissed. As the point involved was quite technical, the parties shall bear their own costs. s. A. H. Appeal dismissed.