P L D 1963 Dacca 201 (PLP)

17. Mr. Ali has read out the entire case to me and has made his comments thereon. I entirely agree with him that the above cited case is not, in any way, applicable to the facts of the present case. That case was more or less on the principle enunciated in section 13 of the Act V of 1892. Mr. Ali has submitted that the principle that should govern the present case is the principle as laid down in para. 3 of section 15 of the Easement Act. Apart from this the case reported in P L D 1959 Dacca 891 is not applicable to the facts of the present case. I am of the opinion that the principles of English Law of easement cannot be made applicable to the cases in our country and I am supported in my this view by a number of decisions of the High Courts of India, which I shall presently refer to.

18. Mr. Ali has pointed out a decision of the Privy Council on this point (the case of Bhola Nath Nundi and others v. The Midnapore Zemindary Company (8 C W N 425) i.e., as to whether the principle of English Law applies to the cases in India. Their Lordships of the Privy Council in matters of application of principles of English Law to the cases in India have observed at page 433 as follows :‑ "Unfortunately, however, both in the Munsif's Court, and in the Court of the Subordinate Judge, the question was overlaid, and in some measure obscured, by copious references to English authorities; and by the application of principles or doctrines, more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions. The result is that, although the decrees appear to be justified by the main facts, which both the lower Courts held to be established, it is impossible to say that the judgment delivered are entirely satisfactorily."

19. This was a case from the Province of undivided Bengal and the observations of their Lordships quoted above are of general nature relating to the application of the principles of English Law to the cases in India.

20. In the conditions obtaining in the rural areas of our country if in deciding cases of easement, "principles or doctrines, more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions are applied, then very serious and complicated situations will be created, as, I am sure, every villager will have to put up fances or boundary walls to prevent his neighbours and relations or co‑sharers from passing over any part of their lands. In our country, almost in every case, neighbours and villagers walk over the lands of other neighbours and villagers to cut short their way. They do so to go to the mosque or to fetch water from the tanks and wells in neighbours houses in some cases situated even in the inner court‑yards. User of a private track or path of a neighbour lying on his lands and in some cases user of his yards by the co‑villagers to fetch water or to go to mosque to cut short the route is common in our country. If, therefore, the mere user for a number of years by neighbours or relations of a particular part of the lands of the servient owner confers the prescriptive right of way to the dominant owner then I think, hardly, a house will be left in the villages of East Pakistan over which some one or other will not be in a position to claim a prescriptive right of way. Such is not the condition in England and as such I feel, the principles of English Law cannot be made applicable to the cases of easement in our country and the Courts in India too, as I have already indicated, have held so.

21. Now, to deal with the cases some of which have been cited by Mr. Ali in support of his contention already discussed above. I may refer first to the case of Shaikh Khoda Buksh v. Shaikh Tajuddin (8 C W N 359) (this decision has been approved by another Bench of this Court in an earlier decision to which I shall make reference shortly). This case was also on easement and the question of application of English rule that the presumption from user should be that it is "as of right" came up for consideration and it was observed as follows :‑ "The learned Subordinate Judge in his judgment nowhere finds affirmatively that the user was as of right ; nor does he take any notice of the Munsif's observation on the point. The learned Vakil for the plaintiff‑respondent contends that whenever user is proved, the presumption is that it is as of right until the contrary is shown; and in support of this contention he relies upon a passage to be found at page 204 of the seventh edition of Gale's Work on Easement. That no doubt is good authority, but it is doubtful whether it would be safe to follow the rule there laid down, without qualification in this country. In the first place section 26 of the Limitation Act upon which the right claimed is based, expressly requires that the user must be as of right, and if that is so, it is for the plaintiff to show that this requirement of the law has been satisfied. Then in the second place, having regard to the habits of the people of this country, I do not think that it would be right to draw the same inference from mere user that would be proper and legitimate in a case arising in England. The question is always a question of fact, and the propriety of the rule that the presumption from user should be that it is as of right, must depend upon the circumstances not only of each particular case but also of each particular country, regard being had to the habits of the people of that country. As has been observed in an unreported case referred to in Babu Upendra Nath Mitter's book on the Law of Limitation and Prescription, third edition, page 424 (foot‑note): "The nature and character of the servient land, friendship or relationship between servient and dominant owners, and the circumstances under which the user had taken place, may induce the Court to hold that the enjoyment was not `as of right' although there is no direct proof that the enjoyment was had with the permis sion of the servient owner."

22. In the case under my consideration, as I have indicated earlier, nowhere the plaintiffs or their witnesses asserted that Akbar Ali was using the pathway as of right and in that view of the matter I entirely agree with the observations of Banarjee, J., in the above quoted case, as the facts of that case are akin to the facts of the present one.

23. The next case in point of time cited by Mr. Ali is that of Meser Mullick v. Hafizuddin Mullick and others (13 C L J 316). In this case the same point as raised by Mr. Hussain that in the absence of any evidence from the side of the defendants that the user by a dominant owner was a permissive one, it must be held that such right of way as of right, was raised and answered in the negative. In this case also the learned Judge held that the user must be as of right and it is not the responsibility of the defen dants that is, the servent owners to prove that the user was permissive when the dominant owner has failed to establish his user to be as of right with all the ingredients necessary for making out such a case.

24. The next case cited by Mr. Ali is that of Baroda Kant Karmakar v. Sreenath Sil (18 I C 211) a decision of the Calcutta High Court. Therein also the question of application of the principles of English Law came up for consideration and also section 26 of the Limitation Act, and their Lordships observed as follows: "On behalf of the appellants, it has been argued that the learned Subordinate Judge has made two mistakes of law. In the first place, it is suggested that he ought to have presumed, as soon as he found that there had been actual user, that the user was of right. We are unable to yield to this contention. As pointed out by Mr. Justice Banerjee in Shaikh Khoda Buksh v. Shaikh Tajuddin whatever may be the law in England, it is certain that under section 26 of the Indian Limitation Act, which is the law in force in India, the right which the appellants claim must have been used as of right and it was for the plaintiffs who sought to establish such a right, to show that this requirement of the law had been satisfied.

25. The next point that was urged before their Lordships in that case was that the learned Subordinate Judge committed a mistake in holding that the user by the dominant owner in that case was a permissive one and to that the reply of their Lordships had been in the following terms:

‑ "The remaining contention of the appellant is that the learned Subordinate Judge has misdirected himself in certain passages in his judgment: The path claimed' writs the learned Subordinate Judge lies through the court‑yard of the defendants 'bari' close by their dwelling house and kitchen and not far off from a tank used by the female members of their families. In my opinion, the user of such path should always be presumed to be permissive until the contrary is proved'. No doubt, this dictum is rather widely expressed but it seems to us that the learned Subordinate Judge did not intend to lay down any general rule, but that all he meant was that, where the facts are such as are found in this case, the inference prima facie seems to him to be that the user was permissive and not as of right. And we cannot say that this finding of fact is opposed to any principle of law."

26. The facts of that case are almost similar to the facts and the case under my consideration and the principle laid down in that case is applicable to the present case.

27. Lastly, I shall refer to a decision of this Court in the case of Abdul Hafiz and others v. Mafizuddin and others ((1955) 7 D L R 577). In that case, Ibrahim, J., observed as follows :‑ "A prescriptive right of way cannot be acquired by mere enjoyment for the statutory period. The enjoyment must be as of right, i.e., not attributable to permission implied or express. The mere fact that one person walks over the land of another, does not raise any presumption that he has a right to do so. Numerous people pass over the lands of their; neighbours, friends and relations with their tacit permission. Suctnl user, though continuous, and long, is seldom understood as being in assertion of any right. In a suit for prescriptive right of way the plaintiffs must show that his user was such as was sufficient to put the servient owners on notice that the enjoy ment was not attributable to his tact permission or favour. The learned Subordinate Judge does not refer to any evidence to justify, his finding that the user was "as of right". In England, if long user is proved, it is presumed that the enjoy ment was as of right. It would be unsafe to draw such an inference from user in this country, vide the case of Shaikh Khoda Baksh v. Shaikh Tajuddin and others . . . Enjoyment" "as of right" as distinguished from "of right" means, as if the dominant owner had the right to the enjoyment. Whether the enjoyment was as of right or attributable to tacit permission, may be difficult to determine in many cases; but, however, great the difficulty is, it cannot be resolved by drawing a presumption in favour of the dominant owner, on whom lies the burden to establish his right. Whether the enjoyment was had as to right, it to be inferred from the circumstances of each particular case, and it is the duty of the dominant owner to prove facts which will justify such an inference. To entitle him to such an inference, he must show that the acts of actual user were such as to put the servant owner regarded as a reasonable men on notice that a right in the nature of an easement was being asserted or claimed over his property."

28. I myself have taken the same view in the case of Mst. Joharenessa and another v. Babar Ali and others in Second Appeal No. 619 of 1959, (unreported) disposed of by me only a month back.

29. Mr. Ali also pointed out to me a note under the heading `pleadings after the Prescription Act, 1832' occurring at page 374 in Gale on Easements 13th edition, which runs as follows :‑ "In the case of actions brought after the Prescription Act, 1832, modifications in pleading were introduced by section 5 of the Act (which is set out at length, ante, p. 137). Under this section it is necessary to allege enjoyment "as of right" in claiming a prescriptive right of way, but not in claiming a prescriptive right to light; enjoyment as of right meaning an enjoyment nee vi nee clam. nec precario".

30. From this note, it is clear that even in England in a case of prescriptive right of way the expression "as of right" must affirmatively be asserted by the person claiming the right.

31. In the present case no such assertion has been made as I have already observed before, by the plaintiffs either in the pleadings or while giving evidence in the box. In that view of the matter, if even Akbar had used the alleged pathway lying between stations 5 and 3 for more than 20 years, he did not acquire any prescriptive right of way over the same and as such his successors‑in‑interest, the plaintiff‑respondents in the appeal and appellants in the cross‑appeal, have also not acquired such a right.

32. In the result, therefore, I allow this appeal, set aside the judgment and decree passed by the learned Court of Appeal below and confirm that of the learned Munsif. The cross‑appeal filed by the plaintiffs is dismissed. Defendant No. 2 appellant shall be entitled to the costs of this appeal as well as to those of the Courts below. S. B./A. H. Appeal allowed.