JUDGMENT

1. This is an appeal against an order of the Special Judge of Cuttack, affirming an order by the Assistant Settlement Officer of Puri, passed in a settlement case under Chapter X of Act VIII of 1885. All the proceedings in the case as well as the Judge's order now under appeal, are of date prior to the passing of Act III of 1898 B. C. So this appeal has admittedly to be disposed of under the provisions of the former Chapter X.

2. This dispute is as to the existence of a right of way, and the parties are two neighbouring tenants. The Assistant Settlement Officer held the right of way over the Defendants' land to exist, and the Special Judge has affirmed his order.

3. In appeal, it is urged ILR 21 Cal. 378 (1893) that the Settlement Officer was not justified in recording the existence of the alleged right of way, as it is not one of the conditions or incidents of a tenancy he had jurisdiction to record under sec. 102, cl. (h): (2) that under a ruling of this Court in Pundit Sardar's case (1) the Settlement Officer had no right to decide a dispute between tenant and tenant.

4. We think these contentions must prevail. We consider that the existence of a right of way cannot be rega