No easement by prescription could be obtained by a tenant against his landlord, and the absence of a grant of right of way led to the failure of the suit relating to the right of way.

Pollock, J—The plaintiff brought the suit giving rise to this appeal to establish right of way through the defendant a field and to secure removal of the encroachment erected by the defendant. He succeeded in both the lower Courts and his right to have the encroachment removed is not now disputed. We are concerned in this appeal only with the right of way claimed by the plaintiff through the defendant's field.

2. The plaintiff's father became a tenant of field No. 28/1 in Mouza Palgondi in 191718, and the plaintiff's case is that he and his father have ever since passed along the western boundary of field No. 27 in order to reach their field. The lower Courts have held that this approach to field No. 28/l has been used by the plaintiff as of right for over 20 years and that he thus acquired an easement by prescription.

3. Field No. 27 was admittedly the sir land of the lambardar of the field, who is the plaintiff's landlord, until 1939 when the lambardar transferred it to the defendant; presumably the defendant became a tenant of the field, though that is not stated. Mr. Padhye, for the defendant appellant, contends that no easement by prescription could be obtained by a tenant against his landlord, and that therefore there could be no easement by prescription at least until 1939. The contention appears to me to be correct and has hardly been disputed in this Court. In support of it see Udit Singh v. Kashi Ram,1892 14 ILR(All) 185, Mani Chander v. Baikanta Nath Biswas, 1902 29 ILR(Cal) 363, Basavanagudi Narayana Kamathy v. Lingappa Shetty, 1920 AIR(Mad) 125, Abdul Rashid v. Brahman Saran, 1938 AIR(All) 293 and Abdul Haque v. Tarabannessa, 1937 AIR(Cal) 572.

4. Mr. Jaiswal, for the plaintiff-respondent, however, suggests that even if no easement by prescription could be acquired against a landlord the grant of a right of way should be inferred from the open user of it for over 20 years. The question whether there was a grant or not is a question of fact and no grant was ever pleaded. It is clear from the evidence of the plaintiff himself that there was no express grant for him as he stated that he did not obtain the consent of the malguzar, for his using the way. In these circumstances, I do not consider that a grant could be implied. The suit therefore in so far as it relates to the right of way must fail, but as this point was taken for the first time in this Court I direct that costs shall be borne as incurred throughout. The appeal is allowed to that extent.

Final Result : Allowed