Mirza, J.:— The facts leading up to this second appeal are briefly as follows: The plaintiff-appellant had sued the defendant for a declaration that he had an ancient right of way for his cattle and men to pass through the defendant's land, for a mandatory injunction to have the obstruction caused to the way removed and for the issue of a permanent injunction restraining the defendant from obstructing the plaintiff's cattle and men in their use of the way from June to October during the year. The trial Court held that long or immemorial user, on which the suit was based had not been established, but it came to the conclusion that the plaintiff had satisfactorily proved that he had enjoyed this right of way as claimed by him for a period of over 20 years, and had thereby acquired a right of easement by prescription. The learned trial Judge was of opinion that although it had been shown that there were other ways by which the plaintiff's cattle could reach their pasture, yet the evidence showed that during the wet season those ways were blocked up for cattle although men could use them. The object of blocking up the way, which was a public foot-path, so that cattle may not use it was to prevent the cattle straying into adjoining fields owned further most part any the plaintiff where the plaintiff grew hay and paddy, which would be damaged if the cattle strayed into the fields. The learned trial Judge put the case of the plaintiff almost on the footing of an easement of necessity, and came to the conclusion that as this was the most convenient route to take to send the plaintiff's cattle to their pasture, that route must have been followed. In appeal, the learned appellate Judge came to the conclusion that although the route had been used by the plaintiff's cattle for over twenty years, it must be held that it was a permissive use and not as of right. The learned appellate Judge was of opinion that it was not a case of an easement of necessity and the right claimed by the plaintiff was not satisfactorily established. Hence he allowed the appeal and dismissed the plaintiff's suit. The plaintiff has filed this second appeal from the judgment and decree of the lower appellate Court.

2. It is pointed out by Mr. Kane on behalf of the appellant that the defendant had not relied upon a case of leave and license in either. Court and it was not open to the learned Judge in the appeal Court to make out a new Base for the defendant. In the written statement the defendant alleged that he had never seen the plaintiff's cattle using the way, and had never heard that they had been using the way. He denied the plaintiff's right to use the way and denied the plaintiff's allegation that he had been using the way from ancient times. The defendant having recently purchased the land from its previous owner, was not in a position to contradict the evidence on behalf of the plaintiff that his cattle had gone over the defendant's land in going to their pasture for a period of over twenty years. On the pleadings the learned trial Judge rightly remarked that it had never been, suggested that the plaintiff had to ask anybody's permission in order to use the way. The learned Judge in the lower appellate Court has remarked that “the cattle used to be driven over the land by license merely and not as of right.” He held that this was not an easement of necessity, that the appellant could have taken his cattle even during the wet season through another path, and it was no concern of the defendant that no damage should be done by the cattle to the appellant's paddy or hay and that it was for the appellant to make arrangements to prevent the damage by the cattle to his property. The judgment of the lower appellate Court, in my opinion, cannot be sustained on the ground put by that Court that the cattle went over the defendant's land by license only. There is no evidence to that effect, and it is not open to the Court to conjecture that any express leave or license was granted by the owner of the land to the plaintiff to take his cattle over the land. It is necessary, however, that the plaintiff should establish, his case as required by law before he can claim a right of easement over the land-Section 15 of the Easements Act, inter alia provides that where a right of way has been peaceably and openly enjoyed by any person claiming title thereto as an easement, and as of right, without interruption, and for twenty years, the right would be established. It is necessary for the plaintiff, therefore, to establish that he openly enjoyed this right and that he did so as of right. The case put forward by the plaintiff in his pleading was' much higher than what he was prepared to support by his evidence. By his pleading he had claimed that his men were passing through this land. By his evidence he restricted that user only to the cow-boy in charge of the cattle. In this deposition he admitted that his cattle used to roam about over the entire extent of the intermediate lands while passing on towards the pasture land. He claimed a right of way not only against the land belonging to the defendant but also against certain enter mediate lands belonging to other parties, His case was that his cattle started from the village, went along the margin of the village tank then passed through Survey Nos. 226 and 227 and then entered the defendant's, land, which is Survey No. 225, hissa No. 4, and going through the defendant's land entered the plaintiff's land, Survey No. 225, hissa No. 1, for grazing purposes. After the defendant purchased the land and obstructed the plaintiff in taking his cattle through it during the wet season, the plaintiff adopted a somewhat different route for taking his cattle to their pasture without using the regular route which was being used during the dry weather. The owner of Survey No. 226 now objected to the plaintiff taking his cattle through his land. The owners of those intermediate lands over which the right of way is claimed are not parties to this action.

3. It is admitted that the defendant's land was for many years fallow land. It is nobody's case that the owner was in occupation of the land or that he had enclosed it or was deriving any income from the land. The only user established by the plaintiff in connexion with this land amounts to this, that his cattle went in charge of the cow-boy once during the day, and returned the same way in charge of the cow boy the same day after grazing in the pasture land. From the point of view of the plaintiff, his user under these circumstances may be regarded as an open one. But in my opinion the object of the section in requiring that the user should be open is that it must be of a nature from which a presumption would arise that the owner of the land had knowledge that his land was being so used, and that he had acquiesced in it. The English law on the subject emphasises the necessity of the proof of such knowledge. Gale in his Law of Basements, Tenth Edition, p. 236, states that the enjoyment must be one of which the servant owner has knowledge either actual or constructive. Again at p. 318 he states:

“The user which is relied on, as evidence of dedication mast, moreover, have been so open and notorious as to lead to the presumption that the owner of the land over which it was enjoyed knew and acquiesced in it.” See Webb v. Baldwin(1).

4. There is no direct evidence in this case that the owner of the land knew that the plaintiffs cattle were passing over ittwice a day during the rainy season. The evidence does not show that the cattle by using the defendant's land had formed any path on the land which would put the owner on inquiry as to how the path had been formed and to discover that the cattle were using it. The land was not being continuously used for the purpose throughout the year, but only during the wet season. The cattle were not using any particular path when they were on this land, but were straying over all parts of it. From such circumstances no presumption as to a constructive notice could arise.

5. The other requirement of the section is that the plaintiff should have used the defendant's land as of right. The learned trial Judge has rightly remarked:

“It is a matter of common knowledge that in villages, grass lands belonging to others are frequently used by persons residing therein for taking their cattle over to their own pastures or grass lands, without any objection or obstruction from the owners of those lands.”

6. Being aware of this custom, why should it not be assumed that the plaintiff took it for granted that if the owner discovered his cattle using the land for going to their pasture his permission could be obtained for letting them do so, as they would not cause any injury to a land which admittedly was fallow? Further, the circumstance that when the defendant obstructed the plaintiff in his use of this land the plaintiff did not immediately assert his right by coming to Court, but took his cattle by another route so as to avoid the defendant's land, seems to indicate that he was not using the defendant's land as of right, but because he had found it convenient to do so in order to avoid damage to his own property.

7. In a country like India where the lauds are usually unenclosed, before a right of easement is declared to be established over them, the Courts, in my opinion, must require strict proof that the plaintiff has satisfied the requirement of the section. In Khoda Buksh v. Tajuddin(2), Banerjee, J. remarks (p. 360):

“…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 tan unreported case referred to in Babu Upendra Nath Mitter's book on the Law of Limitation and Prescription, third edition, p. 424 (footnote): “The nature and character of the servant land, the friendship or relationship between the servant 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 permission of the servant owner.” In my opinion the plaintiff has failed to discharge the burden of proof which lay on him to show that his use of the defendant's land was openly enjoyed and as of right. The decision of the lower appellate Court may be upheld on this ground. The judgment of the lower appellate Court is affirmed, and this second appeal dismissed with costs.

8. Baker, J.:— I agree. The circumstances in the present case are peculiar. This is not a case in which a right of way is claimed over a definite path, so that the owners of the land over which the right is claimed would hive their attention drawn to the fact of the user by the plaintiff. We are dealing here with open lauds in the vicinity of the village, which for a great part of the year, are fallow, and are not used by the owners, and the plaintiff's cattle, according to his own admission, did not piss over these lauds in any definite track, but to use his own words:

“roamed about over the entire extant of the intermediate lands while passing on towards his land.”

9. In these circumstances the question is whether an easement has been acquired under Section 15 of the Easements Act. The remarks which have been already quoted in the judgment of my learned brother from Matter on Limitation that:

“the nature and character of the servant land, the friendship or relationship between the servant 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 permission of the servant owner”

will apply to the present case. It is quite true that in Kunjammal v. Rathnam Pillai(3), the Court did not draw a distinction between a right of way and a right to water. That case, however, was on very peculiar circumstances, where the right of way was claimed for the dominant owner to pass through the dwelling house of the servant owner. But the present is a case of a very different character, and, as was held in Meser Mullick v. Hafizuddi Mullick(4), in questions regarding a right of way the Court should consider the character of the ground, the space for which the right is claimed, the relations between the parties and the circumstances under which the user took place. In the peculiar circumstances of the present case I am not satisfied that the plaintiff has established a right of way which he claims, and I, therefore, agree that the appeal should be dismissed with costs.

M.N/R.K

10. Appeal dismissed.