P L D 1964 Dacca 52 (PLP)

"I think this is an old theory. There is no ;substance in this contention." In these view of the matter the trial Court decreed the suit.

7. On appeal the learned Subordinate; Judge after considering the evidence of the P. Ws. and also the evidence of D. Ws. that their children go to school by this pathway, came to the conclusion that there was some kind of pathway over the suit land. "The learned Munsif has rightly concluded that the fact that the boys of the Mouja Dhanpur, Gunargaon, Hajerigaon etc., go to school through a pathway which is identical with the suit tract is a good indication to lead the Court to conclude that there is an existence of the disputed pathway as depicted by the learned pleader commissioner", and then from the existence of the culturable land of the plaintiffs in Suresh Haor, the learned Sub?ordinate Judge held that the use of the suit path was essentially necessary for them to go to the land and that to ask them to go to those lands by the alternative path is to make them take unnecessary longer journey. "I am satisfied that the plaintiffs have been using their suit land as the pathway for a long time and that the entries in the Chitta do not outweigh the evidence adduced by the plaintiffs on this point . . : . . Evidently the Chitta does not represent the true state of affairs and commends 'hardly any reliance for the determination of the present issue." He also agreed with the trial Court as to the question of limitation and defect of party and dismissed the appeal of the defendants.

8. In second appeal, the learned Single Judge of this Court, it appears, read in the judgment of the Courts below that the plaintiffs by their long, open and uninterrupted use of the disputed land have acquired a prescriptive right to use the same as pathway for going to and coming from their lands in Suresh Haor. Then the learned Single Judge proceeded to deal with the question raised by the learned Advocate that the plaintiffs who are the villagers of particular village could not have acquired a right of way over the disputed lands either by prescription, by user from time immemorial based on lost grant as there could not be a prescriptive right by or a grant either actual or presumptive in favour of indeterminate body of persons and as such only right that can be claimed is customary right on the basis of custom but as the plaintiffs have not based their claim on custom they cannot succeed in the suit on customary right. While dealing with the question raised the learned Judge after referring to the cases cited before him though observed that there cannot be any dispute that it is settled law that an indefinite body of persons cannot claim a right on the basis of a lost grant or under section 26 of the Limitation Act and that the plaintiffs have no doubt have not based their claim on a custom in the plaint, and held that in view of the finding of the Courts below that the villagers of village Dhanpur have been using the present pathway for going to their boro field at Suresh Haor from time immemorial he did not think it reasonable to reject the plaintiff's claim on that account when the facts found clearly established a case of customary use by the plaintiffs of the disputed land from time immemorial and therefore relying on the decision in the case of Abdul Hossain and others v. Sadai Gobinda Deb and others (42 C W N 1102), dismissed the appeal of the defendants holding that the plaintiffs have acquired a customary right. Hence this appeal by the defendants.

9. It is contended by the learned Advocate that it is not found by either of the Courts below that the plaintiffs are in use of the disputed pathway openly and uninterruptedly for a period beyond human memory nor there was any finding that the plaintiffs are in user of the disputed pathway from time immemorial for going to and coming from Suresh Haor with their cattles and sallas for the purpose of cultivation of their lands in that Haor and that the learned Single Judge is wrong in holding that both the Courts below found that the plaintiffs by their long, open and uninterrupted use of the disputed land have acquired prescriptive right to use the same as the pathway for going to and coming from their land in Suresh Haor nor the finding of such user if any, can give rise to a customary right claimed for the first time in second appeal.

10. We think the contention of the learned Advocate is not without any substance. We have pointed out in detail how both the Courts below dealt with the right claimed in this case. It is apparent the point at issue, was not clear to either of the Courts below. Some time the Courts below considered it as a prescriptive right, some time as easement by necessity, some time as user from time immemorial based on lost grant and ultimately it came to take the shape of customary right in second appeal in the High Court. There 1s no clear cut finding in the judgment of the Courts below as the learned Single Judge seems to think that there is such finding as stated by him.

11. It is no doubt true that in the case reported in 42 C W N 1102 the question of customary right was not specifically raised in either of the Courts below as in the present case the suit was pending since October 8, 1920 and the High Court decided that case in 1938 the learned Judge was obliged to observe at the bottom of page 1106 of the report as follows :‑ "Had it not been pending for such a long time there might have been something to be said in favour of sending the case back for a decision as to customary right, but in view of the findings arrived at by the Courts below and in view of the manner in which the suit was contested I think that in this particular case a remand is not necessary as I am convinced that by the manner in which the suit has been continued no prejudice has been caused to the defendants. The appeal is accordingly dismissed. As the plaintiffs' failure to claim the right as a customary right has caused a great deal of trouble, and as they have only succeeded as to little more than of their claim, 1 think there should be no order as to costs in this appeal." (The learned Judge also refused to grant leave to appeal under the Letters Patent). Certainly this decision cannot be taken as an authority that though customary right was not specifically pleaded it cannot be found from the other findings arrived at by the Courts below without considering the existence of element constituting the customary right, namely, whether the uses of the pathway was from time immemorial, whether it was open and uninterrupted, A whether it is reasonable or not and whether there was an implied or tacit consent for facilitating mutual cultivating process amongst the villagers by allowing one to go over the land of the other which should be gone into particularly when, as in the present case, the disputed pathway is over two miles long running over the village Gonargaon.

12. We must make it clear that it has been pointed out in the case of Asrabulla and others v. Kiamatullah Haji Choudhury and others ((1904) 2 Ch. 534, 557), relying on the case of Mercer v. Donne (41 C W N 503), that the period of ascertaining as to whether the custom is reasonable3 or not is certainly the period of its inception ; and also we like to point out that user from time immemorial must not be on the basis of lost grant nor on the basis of prescription under section 26 of the Limitation Act because no question of grant to or of prescription by, an indeterminate body can arise as pointed out by Justice Mukberjee, in the case of Asrabulla and others v. Kiamatulla Haji Choudhury and others. In these circumstances, without expressing any opinion which may prejudice one side or the other we think the case should go back to the trial Court for consideration of the case in the light of the observations made above on evidence already on record and to dispose of the suit according to law.

13. The result, therefore, is this appeal is allowed, the judgments and decrees of all the Courts below including that of the Single Judge of the High Court are set aside and the case is remanded to the trial Court for rehearing of the suit on evidence already on record in the line suggested and in the light of the observation made above. As no one appears on behalf of the plaintiffs we make no order as to costs. A. S. CHOWDHURY, J.‑I agree with my Lord, the Chie Justice.