JUDGMENT 1. This is an appeal from a decision of the District Judge of Patna, dated the 22nd of August 1898. The suit, out of which the appeal arises, is one for a declaration that the Defendant has no right to obstruct a certain way which the Plaintiffs claim to have been used by themselves, their predecessors, guests, friends, servants and other persons residing in the neighbourhood from time immemorial, as of right. The greater part of the land over which the right of way is claimed is admittedly the Defendant's land ; and the balance is not claimed by the Plaintiffs. 2. The District Judge has come to the findings (i) that the suit must fail in the absence of proof of special damage against the Plaintiffs, and (ii) that the Plaintiffs have not proved their claim to the right of way. On the contrary, he has come to the conclusion that such user as there was was of a permissive nature. 3. The Plaintiffs now appeal, and it has been contended, first, that the Judge is wrong in holding that the suit must fail in the absence of proof of special damage ; and, secondly, that he has come to no such clear finding, that the user was not as of right, as should conclude us in second appeal. 4. We admit that the judgment of the learned Judge is not altogether a satisfactory one. Certainly he has gone wrong in holding that the suit must fail in the absence of proof of special damage : because the right of way in this case is not a right of way by the public, but a private right of way and an easement or right by prescription. Therefore the question as to whether or not there has been proof of special damage is immaterial. But, however that may be, it seems to us that the Judge has come to a very clear finding that such user of the road as has been shown to have taken place during the last 20 years was permissive, and not as of right. 5. Learned counsel for the Appellants has contended that there is no allegation in the written statement of the Defendants to the effect that the user of the road was of a permissive nature. 5. Learned counsel for the Appellants has contended that there is no allegation in the written statement of the Defendants to the effect that the user of the road was of a permissive nature. Hut, in the first place, as pointed out by the pleader for the Respondents, there is a clear denial of the Plaintiff's user of the way as of right ; and therefore it was incumbent upon them to show that they had used this way as of right ; and it was open to the Defendant to show that the user of the way was not as of right, but by his permission. In the second place, we think that the Defendant has in paragraph 19 of the written statement at least by implication, pleaded that the use of the way between the two thoroughfares was of a permissive nature ; and we think therefore that the finding of the District Judge in this case was properly arrived at on the pleadings of the parties and the evidence in the case, and that that finding must conclude us. 6. The learned pleader for the Respondents has also contended that the suit must fail on another ground, namely, that the suit was one for an interested class of persons and that as the procedure laid down in sec. 30, C. P. C., has not been adopted, it should be dismissed. But we cannot agree with the pleader for the Respondents on this point : because we think that the District Judge has expressly found that the suit is not one of a nature to which sec. 30, C. P. C., applies. But this is not of much importance. The findings of the District Judge that the Plaintiffs have not succeeded in proving that their user was as of right is sufficient for the disposal of the case and concludes us. The appeal is dismissed with costs.