JUDGMENT

1. This is a representative suit under O. 1, R. 8 of the CPC for declaration of right to what is described as a village pathway in the plaint. The suit was decreed by the learned Munsif of Amta. On appeal, this decision was reversed by the learned Subordinate Judge of Horfrah, and hence this appeal by the plaintiffs. The main contention of the appellant is that the lower Appellate Court applied a wrong test in determining the right claimed in the suit, and that this was due to a misconception of the nature of the pathway concerned. It was pointed out that throughout the plaint, the pathway was described and claimed as a “village pathway” but that the learned Subordinate Judge treated it as a “public pathway” and dealt with the case on that basis. It cannot be disputed that this would make a difference, for, as was pointed out by Wilson, J. in the Full Bench decision in 15 Cal 460,1 there are three distinct classes of rights of way: first, private rights in the strict sense of the terms vested in particular individuals, and such rights commonly have their origin in grant or prescription; secondly, rights belonging to certain classes of persons or certain portions of the public, such as the freemen of a city, the tenants of a manor, or the inhabitants of a village; and such rights commonly have their origin in custom; and thirdly, public rights in the full sense of the term which exist for the benefit of all the King's subjects, and the source of these is ordinarily dedication. There can be no doubt that the question which the learned Subordinate Judge addressed himself to in this case was as to whether dedication had been proved; and holding that there was no evidence of dedication, he dismissed the suit. Thereby, it is complained, he disposed of the case on a wrong basis.

2. It is true that the plaint refers to the pathway as a village pathway, though, as the learned Munsif points out, it may be said that the averments do not make it quite clear “whether plaintiffs claimed a right of easement by prescription or a village pathway by custom, or a public pathway by dedication”. See para. 4 of the plaint in which “right of easement by prescription” is claimed by virtue of long, peaceful and open enjoyment as of right and without interruption, as well as “grant and agreement presumed from immemorial user”. Without construing the plaint very strictly, I think it may be fairly taken that what the plaintiffs intended to plead was a customary easement, not an easement proper, though custom was not expressly or specifically pleaded. The question would then arise if in that view the plaintiffs had given such evidence as would be sufficient to establish the custom they now sought to rely on.

3. The learned Munsif points out that from the evidence adduced, since the beginning of the trial, it appeared that the plaintiffs relied on dedication or presumed grant, and he also said that he would consider only the question of a public pathway, and not of a village pathway. As his decision went in favour of the plaintiffs, naturally they did not complain. Be that as it might, I decided to examine the evidence for myself on the basis now urged for the first time by the appellants, and having done so, I may state at once I have come to the conclusion that the plaintiffs must still fail.

4. As I have already indicated, a customary right such as the plaintiffs' claim is not an easement properly so called. An easement proper belongs to a determinate person or persons in respect of his or their land. A congeries of persons, such as the inhabitants of a locality, unless incorporated as a determinate juridical person, cannot claim an easement. A customary right belongs to no individual in particular. It may be enjoyed by anyone who inhabits a particular locality for the time being, or who belongs to the particular class entitled to the benefit of the custom. Easements are, so to speak, private rights belonging to particular persons, while customary rights are public rights annexed to the place in general.

5. As was pointed out in 35 Cal 8512 at p. 857, proof of a customary easement is immensely more difficult than proof of an easement within the provisions of Section 26 of the Lim. Act. The persons who rely on custom must prove that it was ancient, continuous, peaceable, reasonable, certain and compulsory. In other words, they must not only prove the elements required under S. 26, but something more. Here the evidence does not amount to more than that of user for the period of the ages of the several witnesses who deposed to it. Whether or not it is correct to say, as was said by the learned Judges in 36 CLJ 2803 at p. 286, that if the evidence shows that the right has been enjoyed for a considerable period, say 30 or 40 years, then the burden of negativing the right claimed is on those who deny its existence: it is unquestionable, as was also pointed out in that case, that the enjoyment must have been as of right, and neither by violence nor by stealth, nor by leave asked from time to time. The learned advocate for the appellants relied very strongly on this case, but this is really of no assistance to him. It helps him only so far as it purports to lay down that we cannot in this country apply the principle of English common law that a custom is not proved, if it is not shown to have been enjoyed from time immemorial, but not so far as the nature and character of such enjoyment are concerned. The appellants in this case are unable to point to a single statement in the oral testimony of any of the witnesses to the effect that the user of the pathway was as of right, or that it was not by leave taken from anybody. All that is said is that the pathway was used “openly” and “without obstruction”. This, in my opinion falls short of what is required. Referring to a pathway south of the pathway in dispute, P.W 1, one of the plaintiffs in the suit, stated as follows:

The pathway south of the plaint land is being need without permission of anybody, or without exercise of force, or without obstruction.

6. But no such definite statement was made regarding the pathway in suit. The evidence of user given on behalf of the plain, tiffs would in fact be quite consistent with a case of permissive enjoyment, and in my opinion therefore it must fail as evidence of a customary easement. Then, again, on, the case now made, the evidence is not effective from another point of view. If the pathway is claimed as a village path, way, and not as a public pathway, it is in my opinion necessary to show that the user was of the pathway as a village path, way. In other words, the evidence must be that it was used by the inhabitants of the village or villages concerned as such, and not as members of the general public. I cannot do better than refer on this point to a case to which I drew the attention of the learned advocate for the appellants in the course of argument, the case in (1876) 21 WR 603,4 as explained by Cotton L.J in (1881) 17 Ch D 5355 at p. 598. This is what Cotton L.J said:

In that case what was attempted to be asserted was a claim of all the inhabitants of a village to use a green for the purpose of recreation. The evidence given was that all people, whether of the village or not, had need it; and it was held that, this evidence would not support a claim of right in respect of the inhabitants of that village. Some of the persona who used it happened to be inhabitants of the village, but there was no distinction at all as between their user and that of all the rest of Her Majesty's subjects, and therefore the user by all Her Majesty's subjects as such, the villagers not using it as villagers but as Her Majesty's subjects, did not afford any evidence in support of the claim sought to be established.

7. The learned advocate was unable to repel the force of this argument. The evidence of nearly all the witnesses in this case is that the pathway was being used not only by the inhabitants of the village concerned, but by the public generally. P.W 1 says: “Disputed pathway is a public right of way. The public have been using it since my tenth year”. P.W 2 says: I have known the disputed pathway as a public pathway”. (It may be pointed out that this witness is the person who drafted the plaint). P.W 3 says: “it is used by every one”. P.W 4 says: “Many persons used the same”. P.W 5 says: “We the defendants (sic) [plaintiffs?] and the general public had been using the disputed pathway since I remember”. P.W 7 says: “I know the disputed pathway which is a public pathway…. I Raw many persons pass and repass over the pathway”. P.W 8 says: “The disputed pathway is a public way” P.W 10 says: “Many men used that pathway. I had heard that the road was a public one. I saw many other persons use the same.” P.W 11 says: “The disputed pathway is a public road”. On this evidence, which was all given in examination in chief, it is futile for the plaintiffs to contend that the user which they proved in the case was referable only to the inhabitants of the villages in question as such. On these grounds therefore, in my opinion, the suit must fail. Treating the suit as one for a public pathway, it is obvious that the appeal must be held to be concluded by the findings of fact arrived at by the learned Subordinate Judge that there was no dedication. In any view of the case, the appeal must be and is accordingly dismissed with costs. The prayer for leave to appeal under S. 15 of the Letters Patent is granted.

S.C/R.K

8. Appeal dismissed.