The burden of proving a prescriptive right of way lies on the person who asserts it, and in India, there is a presumption that the user of a right of way is permissive.

JUDGMENT: The defendants filed this Second appeal against the reversing judgment of Shri B. S. Patnaik, Subordinate Judge of Balasore decreeing the plaintiffs suit for a declaration of their right of way over the disputed land belonging to the defendants and directing the defendants to remove the obstructions raised by them to the plaintiffs right of way over the said land and permanently restraining them from closing the pathway.

2. The plaintiffs case is that there is a public road (plot No. 52) running east-west between the homesteads of the parties and the suit pathway is situated on the fallow plots of the defendants and has its point of entrance from the said public road near the front of the plaintiffs homestead and its point of departure on a village pasture land which is on the north-east of the said pathway and is being used as a way by the plaintiffs for generations and for more than thirty years peaceably and openly and as of right without any interruption; that the plaintiffs are using the said way for going to and fro to the pasture land with their cattle and for going to and fro to the neighbouring village and to the market of the said village and the women folk of the plaintiffs family also use the path for going to and fro to the pasture land for answering calls of nature; and that it was the only pathway available to the ladies for the several purpose.

Alleging that the defendants on account of a quarrel closed the southern end of the said path by raising a fence, the plaintiffs sued for a declaration and other reliefs as stated above. The defendants denied the existence of the path or the right claimed by the plaintiffs and contended that the suit was the result of some shebaiti dispute between the parties who are Brahmins and are closely related.

3. The learned Munsif by his judgment dismissed the suit holding that though the plaintiffs user of the suit pathway was for more than thirty years and was accordingly an immemorial user without any interruption and the user might be quite open and notorious to the knowledge of the defendants and the neighbours, the said user was not as of right and consequently the plaintiffs were not entitled to succeed.

4. On appeal, the learned Subordinate Judge held that the plaintiffs user was as of right also and in that view decreed the suit.

5. Mr. R. N. Misra appearing for the appellants contended that the judgment of the learned Sub-ordinate Judge is contrary to law and that he did not appreciate correctly the authorities on the point. The learned counsel contends that by virtue of Section 26 of the Limitation Act and section 15 of the Easements Act and the decisions in the cases reported in Nasiruddin v. Deokali, AIR 1929 Pat 124 (A); Kunjammal v. Rathnam Pillai, AIR 1922 Mad 5 (B); Ramachandra v. Hari AIR 1929 Bom 144 (C) and Shaikh Khoda Buksh v. Shaikh Tajuddin, 8 Cal WN 359 (D), the learned Subordinate Judge ought to have held that the plaintiffs failed to prove that the user was as of right as the burden to prove the same is upon them and that he erred in holding that the defendants failed to prove and not even to assert that the user by the plaintiffs was permissible.

6. There is no specific averment in the written statement of the defendants that the user of the pathway by the plaintiffs was a permissive user. Both the Courts below found that the plaintiffs and the defendants were neighbours and were relations; that they were Brahmins and that the ladies of the plaintiffs family were using the pathway for going to the pasture land for answering calls of nature. The learned Subordinate Judge rightly observed that "in determining the case of easement acquired by prescription as a matter of right, the law is well established that the conditions of things in England are quite different from those in India. In England, the circumstances under which one will permit another to use the land for the purpose of passage without the former having a right to it, is very rare".

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