Full Judgment
Macpherson and Stevens, JJ.
1. The Subordinate Judge has in this case affirmed the decision of the Munsif, and held that the plaintiffs have, under the provisions of the 26th section of the Limitation Act, acquired a right of way over the land of the defendant. The plaintiffs claimed to be the owners of a plot of land appertaining to an estate which belonged to their predecessors and the predecessors of the defendant; they said that this plot had been allotted to them when a partition of the estate was made many years ago; that it had since been in their possession, and that the approach to it was by the way in question, which they and their tenants had always used for that purpose. They claimed a right of way both by grant as an easement of necessity and as acquired under Section 26 of the Limitation Act. We are only concerned with the last mentioned claim, which is the one found to be established. The others have not been considered. No exception is now taken to the finding that the plaintiffs have proved an uninterrupted enjoyment of the way as of right for a period of twenty years. The points urged are, that it is not directly found that the plaintiff's are the owners of the plot of land to which the right of way is said to be appurtenant, and that it is wrongly found that the twenty years' period of enjoyment continued till within two years of the time when the suit was instituted.
2. We think there is nothing in the first point. There was no issue upon it and it was not separately dealt with, but the question whether the way had been used by the plaintiffs in the manner alleged depended very largely upon the question whether this plot of land was in their possession or in that of the defendant. The first Court found that the plaintiffs' tenants were in possession of it for more than twenty years, and the Lower Appellate Court took the same view of the evidence.
3. As regards the second point, the facts found are these: In April 1892 the defendant dispossessed the plaintiffs of the plot which forms the dominant tenement. The plaintiffs got a decree for the possession of it under Section 9 of the Specific Relief Act (I of 1877), and in execution of the decree were restored to possession on the 19th of June 1895. Two days after this the defendant obstructed the way, and the plaintiffs brought this suit on the 25th November 1895. They did not use the way after the dispossession in April 1892. On these facts it is contended here, as it was in the Court below, that the claim, in so far as it is based on Section 26 of the Limitation Act, must fail. Section 26 enacts that the twenty years' period of enjoyment which must be proved before the plaintiffs can succeed 'shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.' The suit referred to must be this suit, as the suit under the Specific Relief Act did not relate to the right of way, and had nothing to do with the statutory period now required to be proved. As the plaintiffs did not use the way for a period of more than three and a half years before suit, the question is, whether notwithstanding such non-user case must go back in order that he may determine whether the plaintiffs are entitled to succeed on either of the other claims. The appellant will get his costs in this Court.