Narain And Others v. Ikram .

1. This appeal raises two questions. One is as to whether the lower Appellate Court was right in making a, presumption that the user of way was as of right. The District Judge relied on Mahomed Ali v. Joogul Ram Chunder [1903] 5 Bom. L.R App. 84 , 14 W.R 124 which was followed in Hari v. Mahadeo [1921] 61 I.C 569 and held that the evidence on record was sufficient to raise the presumption that the long user not being attributable to permission or sufferance was as of right. The District Judge has believed the plaintiff when he said that he did not obtain permission but used the way because he thought he could pass with regard to this matter the appellants' learned Counsel urges, that the District Judge was wrong in his interpretation of Mr. Kotval, Additional Judicial Commissioner's order of remand and in making the presumption that the user was as of right, Mr. Kotval, Additional Judicial Commissioner, had pointed out that all that long user or enjoyment showed was that it was peaceful and without interruption and that the other elements about the user being as of right and as an easement must be distinctly established. The District Judge on a proper consideration of the evidence on record has drawn the conclusion that the user was as of right. Failure on the part of the District Judge, to draw such a presumption was held to be an error of law which made a second appeal competent. See Diwan v. Jagta [1920] 1 Lah. 206 , 56 I.C 728 , 113 P.L.R 1920 where the case of Mohamed Ali v. Joogul Ram Chunder [1903] 5 Bom. L.R App. 84 , 14 W.R 124 has been referred. It was pointed out that where a plaintiff used a pathway without let or hindrance for a period of 20 years and the pathway was the only way they could use to gain access to the well and still the District Judge held that the plaintiff had not proved user “as of right” She High Court held that in not making the presumption the lower Appellate Court had committed an error of law so as to must if an interference in second appeal. It was further held that having regard to the habits of the people of this country the enjoyment of the passage “as of right” within the meaning of Section 26 of the Limitation Act should have been presumed.

2. There is also authority of our own High Court to the same effect in Ramchandra Rao v. Venkat Rao [1918] 16 N.L.R 76 , 45 I.C 936. I, therefore, hold that an open user continued without interruption for a period of over 20 years and not shown to be attributable to permission or sufferance on the owner's part is prima facie evidence of enjoyment as of right within the meaning of Section 26 of the Indian Limitation Act. I, therefore, think that the District Judge was not wrong in making the presumption.

3. As regards the second point I think the finding that the pathway lies between the fields of the two contending sets of defendants their common dhura or uncultivated land is sufficiently definite under the circumstances of the case.

4. I do not see any useful purpose would be served by remanding the case to make it more defi.

5. The appeal, therefore, fails and is dismissed with the costs. Costs in the lower Courts will be paid as already ordered.

6. Appeal dismissed.