Brief facts of the case are that the plaintiff who died during the pendency of the present appeal and has been substituted by his legal representatives, had filed a suit against the defendant for issue of a permanent injunction restraining the defendant from using the passage ^v c l M* shown in the map (Ex.B-2), to dose the doors shown by letters ^V B* of her house opening towards the passage, to remove the Chajja shown by letters ‘ ’ of her house under construction and also to remove the bricks collected on the said passage. According to the plaintiff, Mst. Umabai was the owner of the plot bearing Khasra No. 3598 situate in Civil Ward No. 1, Damoh, town. She sold her land in parts to different persons including the plaintiff Shanker Sunar (now purchased by Baba Bhaiya Tandon). Pandu rang Shinde (now purchased by Babulal Jaiswal) and the defendant. The plaintiff also built a cinema honse known at Jagdish Talkies on this plot as shown in the plaint map. The passage ^l v c M* was included in his sale-deed by the vendor and as such he had become the owner of that inducting the open land purchased by him by a registered sale deed dated 09-08-1944 (Ex.P-4) from Mst. Umabai. His allegation was that this passage was a private passage and the defendant had no right to use the same without his consent. Inspite of notice when the defendant did not abstain from acting in that manner and even stated constructing a Chajja which would interfere with the passage, he filed the present suit for the reliefs mentioned above.

Held : The real question that arises for consideration in the present appeal is whether the defendant could be restrained from using the suit passage although the title of the said passage vests in the plaintiffs. For the determination of this question another question that crops up for decision besides the main question is whether a presumption of dedication on the part of the plaintiff can arise on the admitted position that the suit passage was being used by the public for long years. I thought to advert to this important aspect of the case in the interest of justice as neither the Courts below nor the learned counsel for the defendant adverted himself to the same. There is overwhelming evidence on record of both the sides that the suit passage is being used by everyone, i.e., by the public. It has come in the evidence of the plaintiff's witness Bhawan Mukund Tatke (P.W.5) that the same had been in use by the public since 1947. This passage connects the main road and the picture house built by the plaintiff. According to Laxmi Narayan Tondon (P.W.6), Ram Prasad Katare (P.W.7) Tulsiram (P.W.8) and Moolchand (P.W.9) the passage in question is used by the public since long. That being so the point that has to determined now is whether a presumption of dedication with regard to the suit passage in favour of the public can be drawn.

2. The essential ingredient in order, to come to the conclusion as to whether there has been a valid dedication by a owner of the land is that it must be proved that there is a clear intention on the part of the owner to dedicate his land accordingly. There must be, in other words, animus dedicandi on the part of the owner and the user by the public must be based on the sanction received from such intention of the owner. Sometimes long open user of a way by the public leads to a presumption that the land was dedicated as a highway which principle can also be applied for a passage. Therefore, user as of right by the public justifies the inference of an intention to dedicate the land as a highway, but it is always a question of fact whether such intention can be inferred or not. The mode of acquisition by dedication deserves further attention as it bears some analogy with the rights of easements. Such dedication may be made by an express grant or it may be presumed from a long and continued user on the part of the public. [See: Laxman v. Tukia and others, AIR 1918 Nag. 166]. It is no