Courtney-Terrell, C.J.The facts of this case are simple. The plaintiffs own a plot of land No. 157 on the west side of and adjoining the Mangal Bazar road. A part of this plot is occupied by their house and a strip along the southern edge has been left waste save that a well has been sunk in the middle. By means of this strip it is possible to pass from the road to the rear of the house occupied by the defendant which does not adjoin the road but is situated at some distance further to the west.

2. At the western end of the strip is a wall belonging to the plaintiff and a door in it through which one must pass in order to go from the strip to the land at the rear of the defendants house. The two plots of land are owned by the municipality and the plaintiffs and the defendant are permanent tenure-holders as were at all material times their predecessors in title. By the year 1900 the defendants predecessor had established a privy at the rear of his house and it was cleared by the municipal methrani who passed from the Mangal Bazar road over the strip of land to the south of the plaintiffs house, north of the well and through the door in the wall. The methrani has taken this course since the year 1900 and the defendant claims to have acquired by prescription since that time an easement over the plaintiffs land by which he has the right to have his privy cleared by this route.

3. The plaintiffs raised three main contentions: (a) That there was an interruption in the enjoyment of the alleged easement by which the period of prescription was broken; (b) They alleged that no easement was in any case acquired and that the defendant had not established that his exercise thereof was of right but that it was merely permissive; and (c) that the relation of adjoining permanent tenure-holders is such that in law one cannot acquire an easement over the land of the other.

4. Ross, J. has decided this case on the first ground holding that the interruption alleged by the plaintiffs was sufficient to break the period of prescription. The facts relevant to this issue are as follows:

5. In April 1920 at a date which preceded the expiry of 20 years from the date when the method of clearance may for the purposes of this case be taken to have begun, the plaintiffs closed and locked the door in their wall. The defendant desiring to have his privy cleared by the way used for nearly 19 years requested the municipal authorities who are defendants 2 to break a hole through the wall a few paces south from the door. This defendant 2 did and their methrani continued to pass over the strip but left it not by the door but by the passage newly opened in the wall and in order to approach this passage passed south of the well instead of north of it as formerly. The plaintiffs in September 1922 commenced proceedings against defendant 1 and against defendant 2 claiming an injunction against each and damages.

6. The learned Judge from whose decision this appeal, is preferred has taken the view that the easement, if any, claimed by the defendant was a right of way along the strip to the north of the well and through the door way and that as the door way has been closed since April 1920 and the methrani has, thereafter been compelled to pass south, of the well towards the breach in the wall, made by the municipality, the way followed by the defendant since then is no-longer the same way as he had originally followed and that there was an effectual, interruption. In my opinion, and with the greatest deference to the learned. Judge, this view is not correct. The easement exercised was merely one of access from the road, over the strip of land, to the defendants land and for a limited and special purpose and if an alternative path from the road over this land to the defendants land had been provided by the plaintiffs the defendant would have had no grievance and could not have claimed to pass along any specified track or to have emerged by any specific door or passage; in other words the easement, if any, claimed and exercised continuously is not a specific right of way limited to a particular track but a mere right of transit for a specific purpose. It is a discontinuous non-apparent positive easement and there is nothing in its nature which limits it to a particular path. This being so the fact that a particular path left by the owner of the servient tenement for the exercise of the easement was blocked in April 1920 out another path was opened in August and has since seen used does not constitute an interruption of the easement.

7. The second point was not decided by the learned Judge inasmuch as its consideration was unnecessary in view of his decision on the first point. In English law the exercise of a right of way and similar positive easements for a prolonged period gives rise to the presumption that such exercise was "of right," that is to say, it is presumed that the right of passage was exercised without any permission, express or implied, on the part of the owner of the servient tenement. This is because social conditions and the nature of landed property in England are such that landowners;, are particularly jealous of their exclusive right and the familiar appearance of the notice boards to be seen in England bearing the inscription "trespassers will be prosecuted" is an indication of the views held by the owners of property. Accordingly it is to be presumed that if the owner of the dominant tenement has for a long period passed over the servient tenement that he did it from the beginning with a claim of right, for it is unlikely that if he had not such a right that the owner of the servient tenement would have allowed him to pass. In India, however, and it may be in other countries where such views of the exclusiveness of landed property do not prevail a mere period of long user will not give rise to the presumption. It is customary for the owner of a piece of waste land not to raise any objection to the passage of strangers over such land. It was pointed out by the Calcutta High Court in the leading case of Shaikh Khoda Buksh v. Shaikh Tajuddin 8 C.W.N. 359 that in such circumstances mere long user gives rise to no such presumption as is to be inferred in England and that whether or not long user creates the presumption that its beginning was founded on a claim of right will depend upon the locality, the customs of the people, and it may be, the relationship between the respective owners of the dominant and servient tenements.

9. It follows, therefore, that he who claims such a right by reason of long user must plead and establish as a fact that he has exercised his user under a claim of right. If he so pleads it is for the defendant to rebut the plea by establishing that the user was in fact by express permission. In this case the plaintiffs have contended that the circumstances are such that the mere long user does not give rise to the presumption, and, in the second place, they have contended that the user was in fact permissive. No express permission appears to have been proved on the part of the plaintiffs to the passage of the methrani hut the learned Subordinate Judge has found that the general circumstances and the relationship between the defendants predecessor and the family of the plaintiffs are such that such presumption ought to be inferred. One of the daughters of the defendants predecessor was married to a member of the plaintiffs family. The privies of both houses were served from the Mangal Bazar road by way of the strip of land and having regard to the conditions of Indian family relationship the learned Subordinate Judge considered it probable that the plaintiffs would not have raised any objection, and indeed would have consented to the clearance of the defendants privy by means of that passage. In my view the view of the learned Subordinate Judge was right and since the defendant has neither pleaded nor proved that the clearance of his privy by way of the plaintiffs land was done throughout the period of 20 years under a claim of right and since the circumstances of Indian life do not give rise to the presumption of a claim of right by mere long user the defendant has failed to establish the acquisition by prescription of the easement claimed by him. It is for this reason that in my view the appeal from the decision of the learned Subordinate Judge should be dismissed.

10. Having regard to my opinion on the second point it is unnecessary to decide the third point which, however, is one of great interest. I would venture, however, to indicate my view which is that the nature of a permanent tenure is such that it permits of the creation of easements. As I understand it, the real reason why in English law it has been held that easements can only be acquired for, and on behalf of, the actual owners of the land is that an easement being in its nature perpetual and attached to the land it cannot be acquired by one who has a mere temporary interest therein. It must be remembered, however, that a tenant in fee simple is not an absolute owner of the land which, in law is the property of the king but since the tenant in fee simple has a permanent interest he could create or acquire an easement. The permanency enjoyed by a permanent tenure-holder in Indian law should permit of similar reasoning. This is, however, a mere indication of opinion for what it may be worth, and it is unnecessary to pronounce any formal decision. In my opinion this appeal should be dismissed with costs.

Jwala Prasad, J.

I agree.