JUDGMENT Banerjee, J. - In this appeal which arises out of a suit brought by the Plaintiff-Respondent to establish his right of way over a strip of land belonging to the Defendant-Appellant, the main ground urged before me is that the lower Appellate Court is wrong in giving the Plaintiff a decree without coming to any finding as to whether the user that has been proved was as of right as required by law. A further ground was sought to be urged, namely, that the lower Appellate Court was wrong in giving the Plaintiff a decree without coming to any finding as to whether the way in question was a definite track over the Plaintiff's land commencing from the place whore the khirki or back-door recently erected by the Plaintiff stands, or whether it was an undefined track over the open land to the south of the Plaintiff's house which was not separated from that house by any wall previous to the erection of the back-door. But this second ground not having been taken in the memorandum of appeal, and the point involved in it not having been raised before either of the Courts below, I do not think it right to allow it to be urged. Then as to the main ground as stated above, I am of opinion that it is well sustained. The Munsif in his judgment after finding that the evidence was insufficient to prove the existence of any way, observes that even if he were to hold that the Plaintiff used the pathway over 20 years there was no proof of that the user was as of right; but that on the contrary, having regard to the fact that the user was for the most part, if not solely, by females, the inference would be that the user was only permissive. 2. The learned Subordinate Judge in his judgment nowhere finds affirmatively that the user was as of right ; nor does he take any notice of the Munsif's observations on the point. 3. The learned vakil for the Plaintiff-Respondent contends that whenever user is proved, the presumption is that it is as of right until the contrary is shown : and in support of this contention he relies upon a passage to be found at page 204 of the seventh edition of Gale's work on Easements. 3. The learned vakil for the Plaintiff-Respondent contends that whenever user is proved, the presumption is that it is as of right until the contrary is shown : and in support of this contention he relies upon a passage to be found at page 204 of the seventh edition of Gale's work on Easements. That no doubt is good authority, but it is doubtful whether it would be safe to follow the rule there laid down, without qualification in this country. In the first place sec. 26 of the Limitation Act upon which the right claimed is based, expressly requires that the user must be as of right, and if that is so, it is for the Plaintiff to show that this requirement of the law has been satisfied. 4. Then in the second place, having regard to the habits of the people of this country, I do not think that it would be right to draw the same inference from mere user that would be proper and legitimate in a case arising in England, The question is always a question of fact, and the propriety of the rule that the presumption from user should be that it is as of right, must depend upon the circumstances not only of each particular case but also of each particular country, regard being had to the habits of the people of that country. As has been observed in an unreported case referred to in Babu Upendra Nath Mitter's book on the Law of Limitation and Prescription, third edition, page 424 (footnote) : "The nature and character of the servient land, the friendship or relationship between the servient and dominant owners, and the circumstances under which the user had taken place, may induce the Court to hold that the enjoyment was not "as of right" although there is no direct proof that the enjoyment was had with the permission of the servient owner." 5. In the present case having regard to the facts found, I think it necessary that the point should be gone into by the Court that has to deal with the facts of the case, and clearly and definitely determined. 6. The learned vakil for the Plaintiff-Respondent further urged that there were two additional reasons why I should hold that the judgment has dealt with the point sufficiently. 6. The learned vakil for the Plaintiff-Respondent further urged that there were two additional reasons why I should hold that the judgment has dealt with the point sufficiently. In the first place, he argued, that as the defence was a denial of the existence of the way in question, and there was no suggestion that the user was permissive, the Defendant could not very well contend that the user, if any, has been permissive, when he strongly dented any such user altogether. That no doubt is so. But although the Defendant may not be entitled to have a finding on this point, the Plaintiff is bound to have a finding in his favour upon this point before he can obtain a decree, as sec. 26 expressly requires that the user should be as of right in order that it may lead to the acquisition of a right to an easement. 7. Then in the next place it was argued that there was a finding such as is wanted, in that part of the judgment of the lower Appellate Court where the learned Subordinate Judge says "Starting with the probability in Plaintiff's favour I see his evidence fully supports his case," and his case as made in the plaint was that the user of the way was as of right. There is no express finding in this passage that the user was as of right ; and all that could be said is that this passage by implication contains a finding that the user was as of right. To this argument there are two answers: In the first place it is very doubtful whether the case that the learned Subordinate Judge had in view in making this observation was anything more than the case that there was the way in existence, or that there was this user extending over 20 years. The context would favour rather this view than the comprehensive view that in speaking of the Plaintiff's case the Subordinate Judge was referring to every part of the Plaintiff's case including the allegation that the user was as of right. And then in the next place the point is far from being a simple one. The context would favour rather this view than the comprehensive view that in speaking of the Plaintiff's case the Subordinate Judge was referring to every part of the Plaintiff's case including the allegation that the user was as of right. And then in the next place the point is far from being a simple one. It is one of considerable nicety requiring careful consideration of the nature of the dominant and servient tenements, the relationship subsisting between the owners thereof and the nature of the user; and I do not think it would be safe to import a definite finding upon the question (which requires a careful consideration of all these nice points) into the compendium expression that "the evidence fully supports the Plaintiff's case." I think the proper course to take in this case would be to set aside the decree of the lower Appellate Court, and to send the case back to that Court in order that it may dispose of the appeal before it after determining clearly and definitely whether the user which has been found proved, was as of right or was of a permissive nature. As the case is an old one I direct that it be sent down at once and be taken up by the lower Appellate Court as early as possible. The costs of this appeal will abide the result.