Ram Satya Goswami vs Sambhunath Sarkar

M.M. Dutt, J.—This appeal is at the instance of the Plaintiffs and it arises out of a suit for a declaration that the disputed pathway is a private pathway of the Plaintiffs. The suit was instituted under the provisions of Order 1, Rule 8 of the Code of Civil Procedure. The Defendants in the suit are some of the villagers.

There is no dispute that the disputed pathway belonged to the Plaintiffs. The Defendants, who are some of the villagers, claimed that the villagers acquired easement right of way over the disputed pathway by prescription as also as easement of necessity. In support of their contention the villagers examined some witnesses to prove that the disputed pathway was being used by the villagers for a long time. Extract from the Union Board register of the village concerned was also produced to show that the disputed pathway was recorded by the Union Board as the village pathway in the year 1334 B.C.

The trial Court came to the finding that the villagers did not acquire any right by prescription over the disputed pathway and that the disputed pathway was the private pathway of the Plaintiffs. In that view of the matter the trial Court decreed the Plaintiffs'' suit.

The lower appellate Court, on appeal against the decree of the trial Court at the instance of the Defendants, noticed that in the written statement the Defendants did not specifically plead any customary right, but it was their specific case that they acquired prescriptive right of way over the disputed pathway as an easement. The lower appellate Court, however, took a liberal view of the written statement of the Defendants and it was of the view that although the custom was not specifically pleaded in the written statement by the Defendants it might be inferred from a perusal of the entire written statement that the Defendants were basing their case on customary right. The reason given by the lower appellate Court for the said liberal construction is that in some places in the written statement the words ''village pathway'' have been used. Thereafter, on the evidence of the witnesses, on behalf of the Defendants and also on the basis of the entries in the Union Board register the lower appellate Court came to the finding that the Defendants had been able to prove customary right of way over the disputed pathway. Upon the said findings the lower appellate Court dismissed the Plaintiffs'' suit. Hence, this second appeal at the instance of the Plaintiffs.

There can be no doubt that the villagers of a village or a fluctuating body of persons cannot acquire any right of way by prescription. Such right must be founded on a valid custom. In AIR 1950 56 (Privy Council) it has been laid down by their Lordships of the Judicial Committee that a claim by the inhabitants of a village to the use of a certain area as a cremation ground of a village can only be supported on the ground of a custom and not on the basis of dedication or lost grant. Right of way, such as claimed in the instant suit, cannot be acquired either by prescription or by lost grant by a fluctuating body of persons. It has been further laid down in the above Privy Council case that what the Courts have-required of a custom, if the law is to uphold it as of a right, is that it should be immemorial in origin, certain and reasonable in nature and continuous in use.

Custom has to be specifically pleaded. It cannot be inferred from the statements made in the pleadings. If there is omission to plead custom or customary right as the basis for the acquisition of a right of way by the villagers, the Court cannot enter into the question whether such a right has been acquired by the villagers under a. valid custom. It is true that in some places of the written statement the words ''village pathway'' have been used, but from that it will be wrong to assume that the Defendants pleaded custom in support of the right claimed by them over the disputed pathway. The lower appellate Court has found that the Defendants have been using the disputed pathway for a long time. The "Defendants themselves have pleaded in the written, statement that they have been using the disputed pathway for over twenty years. The Defendants gave evidence in support of their Contention of long user of the disputed pathway. No evidence was given on behalf of the Defendants as to the existence of customary right since time immemorial. Long user by itself does not prove custom. It may be noted here that in the C.S. record of rights there was no mention about the disputed pathway as the village pathway. Only in the R.S. record of rights the disputed pathway has been described as the village pathway. Even assuming that the Defendants or the villagers have been using the pathway for a long time that does not prove that the villagers have acquired the right of way over the disputed pathway on the basis of a valid custom. As aforesaid, no evidence as to the existence of a custom or a customary right was given on behalf of the villagers. The lower appellate Court came to the finding on the circumstances and probabilities of the case that it was possible to hold that the pathway was being used from time immemorial. This finding of the lower appellate Court is without any evidence and, in my view, whether a custom existed or not, cannot be found on mere surmise or conjecture. In the first place, there is no pleading in the written statement of the Defendants about the existence of the custom or customary right of the villagers in respect of the disputed pathway and, in the second place, no evidence was led on behalf of the Defendants about the existence of the said custom. In such circumstances, the findings of the lower appellate Court cannot be upheld.

In view of the aforesaid discussion, the judgment and decree of the lower appellate Court are set aside and those of the trial Court restored. The appeal is allowed, but in the facts and circumstances of the case I direct each party to bear his own costs throughout.