Mirza, J - (1.)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 twenty 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 the adjoining fields owned for the most part by 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 a 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 tiled 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 case 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 Rs. 16. using the way from ancient times. I he 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 thee 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.
(3.)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 ever the land. Section 15 of the Indian 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 his 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 intermediate 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 some- what 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.