Judgement Consolidated seven appeals from seven decrees of the High Court (March 22, 1898), which set aside decrees of the Subordinate Judge of Midnapore, dated November 12, 1895, and remanded the seven cases in which they were severally passed to him that he might decide them in accordance with the directions laid down in their judgment. The decrees of the Subordinate Judge had affirmed with some variation decrees of the Moonsiffs Court, dated May 14, 1895, which were in favour of the appellants. Seven suits had been brought on May 14, 1894, by seven different sets of plaintiffs, in conjunction with a large number of people mentioned in the schedules to the plaints, who were all of them tenants of nine villages appertaining to turuf Paschim of pergunnah Bagri, a large estate of which the respondents were the putnidars. The prayer of the plaints was for a declaration of the plaintiffs right to graze their cattle on the lands specified in schedules to the said plaints, and situate within the ambit of the pergunnah, and for an injunction restraining the respondents from obstructing the exercise of the said right. The plaintiffs described themselves as tenants on the Bagri estate, and as living by cultivation, keeping and rearing cattle, a large number of which were necessary to bring the lands under cultivation by means of manure and ploughing. They alleged that the only way to maintain and keep the cattle alive was by letting them graze in the jungles and on the waste lands described in the schedules. They claimed the right sought to be enforced as of necessity appurtenant to their tenancy, basing their claim upon immemorial user, and on an enjoyment for the statutory period of twenty years according to s. 26 of the Limitation Act (XV. of 1877). The respondents in their written statement denied that the plaintiffs had ever exercised any prescriptive right of pasturage on the scheduled lands according to their own will within the said twenty years. They alleged that most of the scheduled lands were valuable indigo lands and pal land situate on the borders of rivers and khals belonging to them; and that if indigo lands be used as pasture ground for cattle no indigo can be grown thereon. They denied that any prescriptive right had accrued to the plaintiffs. They alleged that most of the scheduled lands were valuable indigo lands and pal land situate on the borders of rivers and khals belonging to them; and that if indigo lands be used as pasture ground for cattle no indigo can be grown thereon. They denied that any prescriptive right had accrued to the plaintiffs. Pasture lands for their cattle had formerly been fixed by the Commissioner and afterwards by other Government officers, and the plaintiffs had up to this time been grazing their cattle on land so fixed. " They can have no land in addition thereto for pasture ground, nor can they obtain a decree for using any additional land." The Moonsiff found that the plaintiffs had prescribed for a common in gross; that their claim " was neither too large and indefinite in its nature, nor is it incapable of definite enjoyment"; that their pasture right had been exercised throughout without any let or hindrance on the part of the defendants. He considered that the growing of indigo amounted to a breach of the continuity of the enjoyment as of right, and that the cessation of user prevented the statutory right being acquired as regards the indigo lands. Also that the grazing of the cattle in the forest did not harm the defendants, but that grazing them on the indigo lands caused substantial damage to the indigo crops, and should be disallowed as unreasonable. The Subordinate Judge on appeal found, "upon careful consideration of all the facts and circumstances disclosed in evidence, that the right of each and every one of the plaintiffs to graze his cattle on the lands severally claimed has been sufficiently established. It has been proved by a large number of witnesses examined on the side of the plaintiffs that for a period of more than forty years the plaintiffs and their ancestors were wont to graze their cows, bullocks, and buffaloes on the lands in suit, and that this user, which was in existence even before the period of defendants accession to the putni of Bagri in 1245 ( 1838-9), was enjoyed openly as an easement and as of right without licence or leave of the defendants, and also without let or hindrance on their part. It is only since Kartick 1301 ( 1895) that the plaintiffs have been prevented from driving their cattle to these lands for pasturage; that these lands were formerly used for pasturage may be gathered even from the evidence of some of defendants witnesses." He held that the plaintiffs claim was not unreasonable or indefinite; and that " as for the argument that a fluctuating body of persons, like the tenants of certain villages, cannot derive any benefit from the rule of prescription, it is to be observed that it has no force so far as these cases are concerned, since here the claim is laid, not by variable bodies on the ground of custom, but on the ground that the same determinate persons (meaning the tenants) have enjoyed the right claimed from time immemorial." Further, "it has been clearly proved in the case on behalf of the plaintiffs that the cattle are taken for pasture to the jungle lands after the cutting is over, from Assar when the new grass begins to grow, and into the indigo lands after the crop is gathered." While admitting that there can be no easement so large as to preclude the ordinary uses of property by the owner of the lands affected, the Subordinate Judge held that the exercise of the plaintiffs rights of the easement claimed had not the effect of destroying the ordinary uses of those lands by the defendants. He held, further, that the rule that a tenant cannot as against his landlord acquire a right of easement is not of universal application, that the exceptions were in favour of an easement of necessity, and in favour of a right of common as claimed in these cases. He accordingly dismissed the appeals of the defendants, and on the plaintiffs appeals he added to the Moonsiffs decrees a direction that the plaintiffs were entitled to graze their cattle on the indigo lands after the crop is taken away. The High Court on the respondents appeals set aside the decrees which the Subordinate Judge had passed in accordance with his judgment, and remanded the cases to be dealt with by him in accordance with the observations contained in their own judgment. Those observations were to the effect that the facts found by the Subordinate Judge did not support the conclusion at which he had arrived. Those observations were to the effect that the facts found by the Subordinate Judge did not support the conclusion at which he had arrived. The plaintiffs sue as tenants holding under the defendants, they set up their tenancy and the circumstances attending their cultivation as the foundation of their right, and they did not claim an incorporeal right irrespective of their tenancy. The Subordinate Judge was wrong in giving them a right which they did not claim, and in giving them a right to graze an unlimited number of cattle. " Whatever rights they have must be rights which were given to them as tenants and cultivators of the villages." And, further, " What has been shewn is that the plaintiffs were in the habit of grazing their cattle on waste land or many years, and that the defendants have also been in the habit of sowing indigo. It must be borne in mind that in Lower Bengal, which is permanently settled, all waste lands in a permanently settled estate vest in the zemindar of the estate; so that the fact that the plaintiffs cattle were allowed to -graze on such portions of land as were not cultivated with indigo would not justify the conclusion that the defendants could not extend the cultivation of indigo in their own lands or raise crops thereon other than indigo, if they consider it advisable." The decree founded on this judgment was that "the decree of the lower Appellate Court be set aside and the case remanded to that Court to be dealt with as indicated in the judgment of this Court, a copy whereof is hereunto annexed." De Gruyther, for the appellants, contended that the High Court erred in law in holding that the plaintiffs claimed the rights of pasturage as appurtenant to their tenancy, but, whether this were so or not, nevertheless, on the findings of the Subordinate Judge, which were final and unappealable (see on this point Mussummat Durga Choudhrain v. Jawahir Singh Choudhiri (( 1890) L. R. 17 Ind. Ap. 122, 127.)), they were entitled to the decree made by him. The presumptive right claimed was an individual right on the part of each plaintiff, as a khudkhast right, to graze on specific lands. The persons were definite and the land was definite. Ap. 122, 127.)), they were entitled to the decree made by him. The presumptive right claimed was an individual right on the part of each plaintiff, as a khudkhast right, to graze on specific lands. The persons were definite and the land was definite. The user was as of right anterior to the grant of the putni under which the respondents hold. Accordingly a title by prescription was established see Act XV. of 1877, ss. 3, 26. The order of remand in this case was illegal and unnecessary, and it was difficult to say what the lower Court could do under it, and what sort of decree it could frame with regard to the directions given. He referred to Maharani Rajroop Koer v. Syed Abul Hossein (( 1880) L. R. 7 Ind. Ap. 240.) and Johnson v. Barnes (( 1873) L. R. 8 C. P. 527.) to shew that even if the right claimed was acquired otherwise than under the Act, it was not interfered with thereby, for the Act was remedial and not exhaustive. Jardine, K.C., and Cowell, for the respondents, contended that the decree of the High Court was right and ought to be affirmed. The user in this case was inseparably connected with the tenancy and with the cultivation of the lands by the appellants. As matter of law a tenant cannot as against his landlord acquire by prescription an easement in respect of his holding over land belonging to his landlord see Secretary of State for India v. Mathurabhai (( 1889) Ind. L. R. 14 Bomb. 213.); Gayford v. Moffatt (( 1868) L. R. 4 Ch. 133.) ; Lutchmeeput Singh v. Sadaulla Nushyo (( 1882) Ind. L. R. 9 Calc. 698.) ; Lord Rivers v. Adams (( 1878) 3 Ex. D. 361.); Ram Saran Singh v. Birju Singh. (( 1896) Ind. L. R. 19 Allah. 172.) The right as claimed was a personal right, and could not be acquired by an indefinite number of persons over an undefined area. The user as found is referable, and was by the appellants in their several plaints referred to the relationship of landlord and tenant, and therefore to be accounted for without any claim of adverse right. It was inconsistent with that relationship that the tenant should by virtue of an occupation which is constructively that of his landlord acquire rights paramount to his. It was inconsistent with that relationship that the tenant should by virtue of an occupation which is constructively that of his landlord acquire rights paramount to his. The user was referable to a mutual consent. Even if the tenants had acquired adverse rights they were not paramount to those of the landlord. The evidence shewed that, concurrently with the user found, the putnidars sowed indigo as they pleased; that grazing was suspended while indigo was on the land or the jungles were being cut; that the rights of cultivation, improvement, and building were paramount to those of pasturage. It was contended that at least the decree should recognise and reserve the rights of the landlord, so that rights of pasturage should not be claimed in such a way as to be destructive of proprietary right. De Gruyther replied. The judgment of their Lordships was delivered by LORD MACNAGHTEN. These are appeals from a judgment of the High Court of Bengal setting aside appellate decrees of the Subordinate Judge of Midnapore, who concurred with the Moonsiff of Gurbetta, the judge of first instance, in his findings on the facts, and affirmed, with a slight variation, the decrees of the Lower Court. After the appeals were presented, Robert Watson & Co., Limited, who were respondents to England and had been defendants in the Court of first instance, went into liquidation. Their estates, which were formerly the property of Messrs. Robert Watson & Co., the well-known indigo planters, were transferred to the Midnapore Zemindary Company, Limited, and that company has now been substituted on the record as respondents in the place of Robert Watson & Co., Limited. There were originally seven suits. The plaintiffs were different. The lands which were the subject of controversy were different. But the question involved was the same in all. The suits were consolidated for the purpose of the hearing, and disposed of by separate decrees. The plaintiffs were cultivators by occupation belonging to nine villages appertaining to turuf Paschim, pergunnah Bagri, formerly held by Messrs. Robert Watson & Co., and afterwards by the defendant company in putni right. They averred that from time immemorial they and their predecessors had enjoyed the right of pasturage over the waste lands of the villages to which they belonged, and, in some cases, over waste lands of adjoining villages. Robert Watson & Co., and afterwards by the defendant company in putni right. They averred that from time immemorial they and their predecessors had enjoyed the right of pasturage over the waste lands of the villages to which they belonged, and, in some cases, over waste lands of adjoining villages. Their complaint was that, in consequence, as they alleged, of some dispute about planting indigo, the putnidars had denied their title and interfered with the enjoyment of their ancient and undoubted rights. The case, as presented by the plaintiffs, on the face of it and in substance, seems simple enough. It appears to their Lordships that on proof of the fact of enjoyment from time immemorial there could be no difficulty in the way of the Court finding a legal origin for the right claimed. Unfortunately, however, both in the Moonsiffs Court and in the Court of the Subordinate Judge, the question was overlaid, and in some measure obscured, by copious references to English authorities, and by the application of principles or doctrines, more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions. The result is that, although the decrees appear to be justified by the main facts, which both the lower Courts held to be established, it is impossible to say that the judgments delivered are entirely satisfactory. In the High Court the learned judges set aside the decrees of the Subordinate Judge, and remanded the case to him in order that he might decide it in accordance with their observa tions. The learned judges did not take upon themselves to dismiss the suits, though the drift of their remarks seems to lead to that result. At the same time they pointed out, properly enough, that they had not the power to go into facts." It is by no means easy to see what conclusion other than that embodied in the decrees could be arrived at on remand so long as it remains an incontrovertible fact that the right of pasturage claimed has been enjoyed by the plaintiffs and their predecessors from time immemorial—from the time of the Hindu Rajahs—long before the Watsons had anything to do with the property. The learned judges, in their Lordships opinion, were justified in rejecting the notion, which seems to have been advanced in argument and was adopted by both the lower Courts, that the right claimed was a right in gross; but they appear to have been under some misapprehension both as to the character in which the plaintiffs sued and as to the effect of the decrees pronounced by the Subordinate Judge. It was certainly not the intention of the Subordinate Judge or the Moonsiff that the decrees should prevent the defendants improving their property. And, indeed, the Moonsiff expressly states that the plaintiffs admitted the right of the defendants to improve their property provided sufficient pasturage were left. Their Lordships think it will be advisable to insert a provision to that effect in the decrees of the Subordinate Judge. It will tend to prevent disputes in future. With this variation the decrees seem to be unobjectionable. Mr. Jardine, for the respondents, said everything that could be said on their behalf. But it was obviously impossible to support the order of the High Court, or to argue that the result would be different if the case went back to the Subordinate Judge on remand. While their Lordships are unable to concur in the view of the learned judges of the High Court, they wish to guard themselves against being supposed to adopt all the reasoning on which the decrees of the Subordinate Judge appear to be based. Their Lordships will humbly advise His Majesty that the decrees of the High Court ought to be discharged with costs, and that the decrees of the Subordinate Judge ought to be restored, with an amendment in terms providing in each case that the decree is not to prevent the defendants or their successors in title from cultivating or executing improvements upon the waste lands in question so long as sufficient pasturage is left for the plaintiffs and the other persons entitled to the right of pasturage claimed, with liberty to the parties, from time to time, in case of difference, to apply to the Subordinate Judge as they may be advised. The alteration in the decrees will make no difference in the costs, as the right which it is now proposed to protect by express words has never apparently been disputed. The respondents must pay the costs of the appeals.