Chittatosh Mookerjee, J. - (1.) The point for consideration in this second appeal is whether or not on the basis of lost grant or by prescriptive user, the plaintiff-respondent No. 1. Sm. Parul Bala Dasi, has any right of way over the disputed strip of land measuring 13 feet in length and 10 feet in breadth lying on the north-west of C.S. plot No. 507 corresponding to R.S. Dag No. 744), Khatian No. 115 Mouza Jadavpur, Originally. Parul Bala, the plaintiff respondent No. 1, along with five others had filed the suit out of which this second appeal arises inter-alia for declaration of the plaintiffs' right of way and for further declaration that the defendants were not entitled to obstruct the enjoyment of the said right and for permanent injunction to restrain the defendants from interfering with the said right of the plaintiffs. Subsequently, a prayer for mandatory injunction was inserted by the amendment of the plaint of the suit. Subsequently, the plaintiff nos. 1, 3 and 4 jointly with the contesting defendants had filed petitions of compromise. The learned Munsiff, 1st court, Alipore, had dismissed the suit on compromise in terms of the said petition so far as the plaintiff Nos. 1, 3 and 4 are concerned. The high court had also dismissed the suit on merits with costs. Parul Bala, the plaintiff No. 5, being aggrieved by the said decision had preferred an appeal in the lower appellate court. The learned Subordinate Judge had dismissed the said appeal. Thereafter, Sm. Parul Bala had preferred S. A. No. 1721 of 1972. On 28th June, 1974, I had allowed the said appeal and had remanded the matter to the Lower Appellate Court for re-hearing in accordance with law and in the light of the observations contained in the Judgment. I had inter-alia observed that the Lower Appellate Court would be entitled to consider whether additional evidence should be received.
(2.) After remand, the learned Subordinate Judge, 4th Court, Alipore, has allowed the appeal of the plaintiff No. 5 and has decreed the suit. The learned Subordinate Judge has declared the plaintiff No. 5's right of way over the disputed strip of land by lost grant as well as prescriptive user. The learned Subordinate Judge has also granted decrees for permanent and mandatory injunctions against the defendants.
(3.) Mr. Sudhis Dasgupta, learned Advocate for the appellant, has submitted that the Judgment of the lower appellate court is not a proper judgment of reversal. Mr. Dasgupta has further submitted that the lower appellate court misread the evidence when it observed that immemorial user either by prescriptive right or by lost grant had been established. According to Mr. Dasgupta, the lower appellate court erred in law in not applying the correct legal tests for ascertaining whether a presumption of lost grant could be made on the proved facts of the case. Mr. Dasgupta's further submission is that there was no conflict between the C. S. and the R.S. Records and even the R.S. Records did not prove that the plaintiffs or any of them had acquired a prescriptive right of user. Mr. Dasgupta also submitted that the Lower Appellate Court did not consider material p s of the evidence and it was also patently wrong when it had observed that the P.Ws. were not cross-examined with reference to their statement made during examination-in-chief about the existence of the disputed pathway.;