The main legal point established in the judgment is the determination of the right of way based on long and continuous user, and the application of legal provisions such as Section 26 of the Indian Limitation Act and the Basements Act.

Kinkhede—The appellant is a purchaser of a vacant site from a Malguzar and the respondent No. 1 is a neighbour of that site who claims a right of way over it for the beneficial enjoyment of his own dwelling house standing on a site adjacent to the site in dispute. The first Court decreed the claim for injunction restraining the defendants from using the way while the lower Appellate Court has reversed the decree and dismissed the suit. The plaintiff therefore appeals urging that the defendant respondents' enjoyment of the right of way over the site was not proved to be as 'an easement' or 'as of right', and that no easement of a right of way could be acquired by persons who are mere licensees of Abadi sites as against the Malguzar under whom the plaintiff claims the site in dispute.

2. The lower Appellate Court has found it as a fact that the defendant No. 1 and his ancestors or occupants of his houses NOS. 2 and 3 (vide map B) did as a matter of fact use the site in suit for a way to the road to its east for more than 40 years before the date of the suit (this was also the finding of the first Court).

3. There is thus a concurrent finding as to the long and continuous user of the right of way by the defendant No. 1 and his predecessors in title. The Court of first instance however refused to draw the conclusion from such user that ''it was of right.'' The lower Appellate Court has drawn such a conclusion on the authority of the rulings in Mathura Das v. Bai Amthi,1883 7 Bom 522 and Sitaram v. Petia,1918 43 IndCas 962. This conclusion is attacked in second appeal. That it is open to a Court to draw such a conclusion, and a failure to draw it from the facts proved is a ground for interference in second appeal, is well established on the decided authorities. See Diwan v. Jagat,1920 56 IndCas 728 where the case of Mahomedali v. Joogal Ram Chunder was followed. It was also followed in Hari Mahadeo v. Mahadeo Yadeo S.A. 164 B. of 1919. This High Court has also held in Ramchandra Rao v. Venkatrao,1920 54 IndCas 936 that long uninterrupted and peaceful enjoyment of a right of way may be presumed to have a lawful origin or to be as of right. I have also held in Narain v. Ikram S.A. No. 544 of 192, that where from an open user continued without interruption for a period of over 20 years and not shown to be attributable to permission or sufferance on the owner's part, the final Judge of fact, i.e., the first Appellate Court draws an inference or presumption that it is as of right, the High Court cannot interfere with the finding. Such user is prima facie evidence of enjoyment as of right within the meaning of Section 26 of the Indian Limitation Act, or of the provisions of the Basements Act, according as the case may come under the one or the other Act. Halsbury's Laws of England, Vol. XI, page 259 quotes oases in which as will be found, every presumption was made in favour of long user being as of right. There is no presumption that enjoyment is by license, but that long user is presumed to be as of right. Kunjmal v. Rathinam, 1922 42 MadLJ 417.

4. The respondent's pleader also relies on the following Bombay case as justifying the same conclusion and showing that even 35 years user is immemorial. Rambhai v. Valabbhai, 1921 23 BLR 422. The case in Rajrup Koer v. Abdul Hussain,1881 7 IndApp 240 is an authority for the view that long enjoyment must be referred to a legal origin, i.e., to an ''implied'' or ''lost grant''. The latent case which supports the view that an easement may be claimed on the basis of an immemorial user is to be found in Tin Kowri v. Ramgopal,1923 36 CalLJ 161 which also lays down that although a tenant cannot acquire a prescriptive right and easement in land belonging to his lessor, he may claim a right of easement based on immemorial user.

5. In view of the lower Appellate Court's findings that the user has been proved to have continued for over 40 years, I think the case is either a case governed by the provi