JUDGMENT 1. This appeal arises out of an action for price of certain bamboos the learned Judges in the Courts below dismissed the plaintiff's suit, the appellate Court holding that the defendant had been in possession for over 20 years and therefore the action was barred. The only point that I have to decide in this case, having regard to what has happened, is whether the matter should be remanded to the Courts below for determination of certain questions upon which the case really depends. It is necessary to state certain facts from which will be seen the point which is at issue. The plaintiff is admittedly the proprietor of the land upon which these bamboo clumps stand. The defendant admittedly is not the tenant nor is there any relationship between him and the plaintiff. He is not a tenant as I say and his case quite clearly was that he was not a licensee, at any rate that is what in substance it amounted to. His case depended entirely upon an allegation that there was a custom by which he had exclusive right in the timber. The plaintiff came to the Court with a story that there was an agreement under which the defendant would pay the price of the timber cut, and, in this connexion, I might say that the claim was for the timber cut in the years 1334, 1335 and 1336. The Courts below as I have said have held that the defendant had been in adverse possession for more than 20 years, or to use the exact words in the judgment of the Court below, “and having been in exclusive possession of the clumps since the publication of the Record of Rights the plaintiffs' title is barred by adverse possession.” 2. It is quite obvious from an analysis of the judgments of the Courts below that neither the learned Judges nor the parties addressed themselves to the real point in the case. There was no question of tenancy nor was there any question of license unless indeed the plaintiff's story was accepted that the defendant had agreed to pay for the trees which had been cut by him. Such an agreement naturally would take the nature of a license. But this story has been disbelieved by the Courts below. There was no question of tenancy nor was there any question of license unless indeed the plaintiff's story was accepted that the defendant had agreed to pay for the trees which had been cut by him. Such an agreement naturally would take the nature of a license. But this story has been disbelieved by the Courts below. There could not be any custom strictly so-called to appropriate the trees unless the defendant were a tenant. If there had been anything established in the nature of a custom to appropriate the timber the defendant not being a tenant, it would not be, as I have said, a custom but would be in the nature of what is known in England as a profit a prendre; and in this case, as there was no question of tenancy between the defendant and the plaintiff or a tenancy of any other land, it would be what is known as a profit a prendre in gross. But what is known as profit in England is included in India in the term easement’ in Section 2 of the Limitation Act of 1908. It would be more accurate for me to state that this particular, profit would be included in India in the definition; some of the profits known to the English Law may not be included, but that is a matter which I do not propose to determine. Under S. 2: “‘Easement’ includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of the soil belonging to another or anything growing in, or attached to, or subsisting upon, the land of another.” 3. And this certainly included the right to appropriate the bamboos which by the decision of this Court in 1923 Pat 95(1), would be properly described as timber. We have therefore, by reason of the provisions of Section 2 of the Limitation Act, and in the circumstances of the case, there being no license, and there being no relationship of landlord and tenant, to deal with an easement. The Easements Act does not apply to this Province but the law relating to easements which is the law of justice, equity and good conscience in this respect, excepting in so far as there is any statute is applicable. In this connexion Section 26 of the Limitation Act, must be referred to. The Easements Act does not apply to this Province but the law relating to easements which is the law of justice, equity and good conscience in this respect, excepting in so far as there is any statute is applicable. In this connexion Section 26 of the Limitation Act, must be referred to. S. 26 provides that an easement arises when it has been enjoyed as of right without interruption and for 20 years. The explanation to the section should be mentioned although it does not affect the point in dispute: “Nothing is an interruption within the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant.” 4. We are not concerned here whether there was a discontinuance, but we are concerned here whether there was a continuance in enjoyment for upwards of 20 years. Now the unfortunate part about the matter is as I have said that the parties did not address their minds to the point at issue: indeed the defendant came into the witness-box by his witnesses and expressly denied that he had appropriated any trees for the period in suit. What he did before it does not appear; but the learned Judge in the Court below has relied on the Record of Rights for the determination of this point. 20 years ago or more this person was described as being in possession, but this statement by itself was not sufficient. He was in possession and I suppose we must assume that his possession consisted of appropriating either the produce of these trees or the actual trees themselves, exactly what, the Record of Rights does not say. Two points arise: what was the nature of the defendant's possession 20 years ago; and secondly, what has happened since? The plaintiff's case appears to hate been that the defendant was entitled to take the leaves and branches but not the actual timber itself. Whether the possession was of that nature it does not appear. 5. Now the second point is that assuming for the moment against the plaintiff that the defendant's possession was of the nature of actually appropriating the bamboos themselves, what has happened since? Whether the possession was of that nature it does not appear. 5. Now the second point is that assuming for the moment against the plaintiff that the defendant's possession was of the nature of actually appropriating the bamboos themselves, what has happened since? Now the only light we have got with regard to the matter is from the defendant's own evidence in which he expressly denied having cut the timber. So we are left in the position of not knowing whether the plaintiff's version of the defendant's right over those trees is correct, or whether the defendant is actually in possession. There is no evidence on that point, but the bare statement in the Record of Rights in favour of defendant's possession. Again, to repeat myself, we do not know whether the possession which was then in existence has continued since. There cannot be, it must be remembered, any presumption, in the case of an easement, that what was the state of facts 20 or 30 years ago has continued since. The law provides that an easement is established only when it is shown that there has, been a continuous enjoyment; and when, it is necessary, as the law lays down, to prove that fact, no presumption can possibly arise. I say and repeat the defendant did not address his mind to this point; and the fact that the plaintiff made some sort of admission by saying, that he was entitled to take the leaves and branches but not the timber, does not assist the defendant. 6. To come back to what I said in the commencement of my observations, the question, am I to allow this case to go back to be reheard with the directions which are suggested, or am I to dispose of the matter as it stands at present? It is quite clear from the evidence which. I have perused that the matter could not be determined on that evidence. Ross, J., in 1923 Pat 95 [Rameshwar Singh Bahadur v. Basudeva Singh, 1923 Pat 95 : 60 IC 521 : 6 Pat LJ 127] to which I have referred laid down a principle which in my judgment applies to this, casa. The fact that the case which I am quoting may have been under the Bengal Tenancy Act makes no difference to the matter, because the principle laid down is the same. The fact that the case which I am quoting may have been under the Bengal Tenancy Act makes no difference to the matter, because the principle laid down is the same. There by what is described as the common law the landlord had a right to the timber and Ross, J., remarking from the decision that because the landlord set up a custom which he had failed to prove therefore the defendant tenant was entitled to the whole of the trees. Once it is determined that the landlord is entitled to the timber, the custom which he set up is only a partial admission in favour of the tenant defendant and the tenant therefore is entitled to what that admission allows him and by that admission he is, entitled to half the trees. There is no such admission in this case. If there is anything in the nature of admission there is the claim shale there was a license. Now in my judgment I do not think that I am entitled to allow the parties to go back and to adduce evidence to fill up the gaps in the evidence already adduced. That being so I must dispose of it on the considerations which I have stated. The plaintiff in this case certainly failed to establish the existence of a contract to pay for the trees; but his statement to that effect was not inconsistent, indeed it was in agreement with the proposition that he was entitled to the trees. The defendant, for reasons best known to himself which are reasonably apparent, asserted that he had not cut any timber within the years in suit. Now the onus to establish the existence of an easement and therefore a right to these trees was clearly upon the defendant. 7. Not only did he give no evidence of what has happened between the Record of Rights and the years in suit; the evidence adduced as to the exercise of the right during the years in suit is insufficient. In the circumstances it seems to me that the only decision that I can arrive at is that the plaintiff should have been allowed to succeed; and the appeal in this Court therefore must be allowed with costs. 8. In the circumstances it seems to me that the only decision that I can arrive at is that the plaintiff should have been allowed to succeed; and the appeal in this Court therefore must be allowed with costs. 8. As the parties in the Court below agreed that the figure's arrived at by the Commissioner appointed in the case were correct ones, there will be a decree in favour of the plaintiff on those figures. 9. The appeal is allowed with costs. 10. Appeal allowed.