Judgment Rai, J. 1. This is an appeal by defendant 1 against the judgment and decree passed by the Additional Subordinate Judge of Motihari con-firming those of the Munsif of the same place. 2. The plaintiffs had filed a title suit in a representative capacity representing the residents of mohalla Miscott in the town of Motihari for a declaration that plot no. 1154 measuring 16 dhurs is gairmazrua am sarak and that the defendants have got no right or title to construct any building thereon or to encroach upon, or obstruct any portion of the land in suit They further prayed for a direction against defendants l and 2 for removal of the bricks kept and the structures constructed on the said plot. They further claimed a permanent injunction against defendants 1 and 2 restraining them from constructing any building or encroaching on or obstructing any portion of the land in suit. 3. The plot in dispute is within the zamindari of defendant 3. Defendant 2 took settlement of the plot from defendant 3, Defendant 2 on his part sold 10 dhurs out of the plot in dispute by a registered sale deed, dated 28th January 1946, for Rs. 815 to defendant 1. Defendant l, however, took a settlement from defendant 3 of the area purchased by him in order to remove any defect of title that may be found in him. Defendants l and 2 contended that plot No. 1154 was gairmazrua khas malik land and it was never gairmazrua am sarak as claimed by the plaintiffs and that they had no right to claim the reliefs sought for in the present suit. They farther contended that they had every right to build upon the piece of land. It appears that there was a municipal survey of the lands comprised within the municipality of Motihari sometime in the year 1914-15. The survey was conducted under the provisions of the Bengal Survey Act I [1] of 1887 (the Calcutta Survey Act, 1897). The plaintiffs had brought on record a true copy of the survey khasra which has been marked as EX. 5 after objection by the defendants. According to the entry in Ex. 5, the plot in dispute is mentioned as "gairmazrua am sarak kham". The plaintiffs had brought on record a true copy of the survey khasra which has been marked as EX. 5 after objection by the defendants. According to the entry in Ex. 5, the plot in dispute is mentioned as "gairmazrua am sarak kham". Apart from this document, the plaintiffs filed several other papers, and examined a number of witnesses to prove that they had been using this plot for going from the municipal road to the District Board road. It may be mentioned here that on the east of plot no. 1154 there is a District Board road and on the west a municipal road. To the north of plot No. 1154 is plot no. 1153, and towards the south-west of plot no. 1154 is plot no. 1155. On this plot No. 1155 there stands a building which was purchased by Kanti Bhushan Banerji, plaintiff 5, sometime in the year 1943 or 1944. At present this house has been given on rent for storage of grains. It is said that a door and windows of the house on plot No. 1155 open on to plot No. 1154. 4. The trial Court decreed the suit, and the decree passed by the trial Court was affirmed by the lower appellate Court. The trial Court relying upon EX. 5 held that the plot in dispute was gairmazrua am and in that view of the matter, relying upon two decisions of this Court in the cases of Muhammad Waliul Haq V/s. Ludpud Upadhaya, 18 P. l. t. 348 : (A. I. R. (24) 1937 pat. 388) and Amiruddin Sheikh V/s. Sone Lal Jha 18 P. L. T. S20 : (A. I. R. (24) 1937 Pat. 669), came to the conclusion that defendant 3 had no right to grant any lease in respect of gairmazrua lands in favour of defendant 2 or defendant 1, and, as such, the latter bad acquired no right to build upon the land in question. The appellate Court, however, has further held that the claim, if any, of defendant 3 over the land in dispute would be barred by Sec.22, Calcutta Survey Act. For that purpose, it relied upon two decisions of a single Judge of this Court in the cases of Jagan Koeri V/s. Chairman, Gaya Municipality, 18 P. L. T. 464: (A. I. R. (24) 1937 Pat. 567) and Municipal Commissioner, Gaya Municipality V/s. Mt. For that purpose, it relied upon two decisions of a single Judge of this Court in the cases of Jagan Koeri V/s. Chairman, Gaya Municipality, 18 P. L. T. 464: (A. I. R. (24) 1937 Pat. 567) and Municipal Commissioner, Gaya Municipality V/s. Mt. Rupkalia, 18 P. L. T. 466: (A. I. R. (24) 1937 pat. 516). The lower appellate Court was further of opinion that the plot in dispute would be deemed to be the property of the Motihari Municipality, and as the Municipality, though it had previously sanctioned the building of the structures, had, by a later order, prohibited defendant 1 from further constructing the building, it would be deemed to have opposed the right of defendant 1 to build upon the land. It may be mentioned that, while erecting the building defendant 1 has left a pathway about 3 feet wide in the southern portion of plot No. 1154. 5. In this Court, the learned Advocate for the appellant hag contended that no reliance should be placed on the entries in EX. 5 as the municipal survey khasra had not been published by P. w. 17. He also contended that as the original khasra, produced in Court, did not bear any seal showing its final approval, it should not be made the basis for deciding the points in dispute. This raises the question whether an entry in EX. 5 showing plot No. 1154 as gairmazrua am sarak kham destroyed in any way the title of defendant 3 to the land in suit which admittedly lies within the ambit of his zamindari. The record prepared under Bengal Act, I [1] of 1887 (the Calcutta Survey Act, 1887 ) is different in nature from survey record-of-rights prepared under the Bihar Tenancy Act. Sec.3, Bengal Act, I [1] of 1887 runs as follows: "The local Government may, whenever it thinks fit, order, by a notification in the Calcutta Gazette, that a survey shall be made of the lands situated in the town of Calcutta, and for such purpose may appoint a Superintendent of Survey, and one or more Assistant Superintendents of Survey." The section does not contemplate preparation of any record-of-rights in respect of the lands which are to be surveyed under this Act. If one compares the relevant provisions of the Bihar Tenancy Act there is a distinct difference between the survey and the settlement as conducted according to the provisions of the Bihar Tenancy Act and that conducted under the provisions of the Calcutta Survey Act. Some of the sections of chap. a, Bihar Tenancy Act, deal with the preparation of the record-of rights under the provisions of that Act. Some of the sections of chap. a, Bihar Tenancy Act, deal with the preparation of the record-of rights under the provisions of that Act. Section 102, Bihar Tenancy Act, runs as follows : "Where an order is made under Sec.101, the particulars to he recorded shall be specified in the order and may include, either without or in addition to other particulars, some or all of the following, namely, (a) the name of each tenant of occupant; (b) the class to which each tenant belongs, that is to say, whether he is a tenure-holder, raiyat holding at fixed rates, settled raiyat, occupancy raiyat, non-occupancy raiyat or under-raiyat, and, if he is a tenure-holder or not, and whether his rent is liable to enhancement during the continuance of his tenure ; (c) the situation and quantity and one or more of the boundaries of the land held by each tenant or occupier; (d) the name of each tenants landlord; (dd) the name of each proprietor in the local area or estate; (e) the rent payable at the time the record-of-rights is being prepared; (f) the mode in which that rent has been fixed--whether by contract, by order of a Court, or otherwise; (g) if the rent is a gradually increasing rent, the time at which, and the steps by which, it increases; (gg) the rights and obligations of each tenant and landlord in respect of- (I) the use by tenants of water for agricultural purposes, whether obtained from a river, jhill, tank or wall, or any other source of supply, and (II) the repair and maintenance of appliances for securing a supply of water for, the cultivation of the land held by each tenant, whether or not such appliances be situated within the boundaries of such land; (h) the special conditions and incidents, if any, of the tenancy; (I) any right of way or other easement attaching to the land for which a record-of-rights is being prepared; (j) if the land is claimed to be held rent-free whether or not rent is actually paid, and, if not paid, whether or not the occupant is entitled to hold that land without payment of rent, and if so entitled, under what authority." 6. Sec.103 runs as follows : "On the application of one or more of the proprietors or tenure-holders, or of a large proportion of the raiyats, of an estate or tenure, and on the applicant or applicants depositing or giving security for the required amount for expenses, a Revenue Officer may, subject to and in accordance with rules made in this behalf by the Local Government, ascertain and record all or any of the particulars specified in Sec.102 with respect to the estate or tenure or any part thereof." Sec.103A runs as follows: "(1) When a draft record-of-rights has been prepared the Revenue-officer shall publish the draft in the prescribed manner and for the prescribed period, and shall receive and consider any objections which may be made to an entry therein or to any omission therefrom, during the period of publication. (2) When such objections have been considered and disposed of according to such rules as the Local Government may prescribe, and if a settlement of land-revenue is being or is about to be made the Settlement Rent-roll has been Incorporated with the record under Sec.104F, Sub-section (3), the Revenue Officer shall finally frame the record, and shall cause it to be finally published in the prescribed manner; and the publication shall be conclusive evidence that the record has been duly made under this Chapter. (B) Separate draft or final records may be published under Sub-section (1) or Sub-section (2) for different local areas estate, tenures or parts thereof." And Sec.103B runs as follows : "(1) In any suit or other proceeding in which a record-of-rights prepared and published under this Chapter, or a duly certified copy thereof or extract therefrom, is produced, such record-of-rights shall be presumed to have been finally published, unless such publication is expressly denied; and a certificate, signed by the Revenue Officer, or by the Collector of any district in which the local area, estate or tenure or part thereof to which the record-of-rights relates is wholly or partly situate, stating that a record- of-rights has been finally published under this Chapter shall be conclusive evidence of such publication. (2) The Local Government may, by notification, declare with regard to any specified area, that a record-of-rights has been finally published for every village included in such, area; and such notification shall be conclusive evidence of such publication. (2) The Local Government may, by notification, declare with regard to any specified area, that a record-of-rights has been finally published for every village included in such, area; and such notification shall be conclusive evidence of such publication. (3) Every entry in a record-of-rights so published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect." So, it appears from the provisions of the Bihar Tenancy act that it is really a record-of-rights and the right so recorded after various checks is presumed to be correct until it is proved by evidence to be otherwise. So far as the survey under the Bengal Act I [1] of 1887 is concerned, it does not contemplate the recording of rights as contemplated by the Bihar Tenancy Act. It mostly deals with the situation and extent of the various pieces of land within a municipality for the purpose of the preparation of a map giving a correct location of the various plots. Sec.28 of the Act no doubt refers to certain rules to be framed by the Local Government. It runs as follows: "The Local Government may lay down rules not being inconsistent with this Act to provide for the preparation of maps and for the collection and record of any information in respect of any land to be surveyed under this Act, and generally for the proper performance of all things to be done and for the regulation of all proceedings to be taken under this Act." The section no doubt speaks of the power of the Local Government to frame rules, but no rule framed under this Act, which was in vogue at the time when the survey in question took place, has been placed before us. In absence of any such rule, it can be safely assumed that the authorities appointed to survey the lands within the municipal area had not been vested with powers to prepare a record-of-rights in respect of the area in question, and, as such, the entry "gairmazrua am sarak" has no presumptive value. Until the plaintiffs establish by some other cogent evidence that the public has a right either by grant or by prescription to prevent the defendants from erecting the building in question, their right by settlement would stand. Until the plaintiffs establish by some other cogent evidence that the public has a right either by grant or by prescription to prevent the defendants from erecting the building in question, their right by settlement would stand. So apart from the reliability of the survey khasra which has admittedly not been finally published and has, therefore, not much evidentiary value, the entry itself cannot, in law, create any right in favour of the plaintiffs in order to hold that the plot in dispute can be called "gairmazrua am." 7. The decision in the case of Municipal Commissioner, Gaya Municipality V/s. Mt. Rup-kli, 18 P. L. T. 466 : (A. I. R. (24) 1937 Pat. 576) relied upon by the Courts below has been overruled by a Division Bench of this Court in the case of Hardeo Missir V/s. Commrs. of Gaya Municipality, A. I. R. (36) 1949 Pat. 132 ; (27 Pat. 701). The case of Jagan Koeri V/s. Chairman, Gaya Municipality, 18 P. L. T. 464 : (A. I. R. (24) 1937 Pat. 567), relied upon in the Courts below, has also been decided on a different basis. There the plot in question had been claimed by the municipality under Sec. 68, Bihar and Orissa Municipalities Act, and it had been found in that case that the municipality had exercised acts of possession over the plot in dispute since a long time, and, in that view of the matter, the claim of the municipality was upheld by this Court. The learned Judge while deciding the case observed as follows; "On the second question the Subordinate Judge has relied on the entries in the Municipal Survey Map and khasra which were prepared under a different procedure from that associated with the preparation of map and record-of-rights in rural areas under the Bengal Tenancy Act. In the Municipality the map wag prepared under the Calcutta Survey Act which was made applicable to mufassil Municipalities by virtue of Sec.223A, Bengal Municipal Act, 1884. The Calcutta Survey Act has been referred to at the hearing and no doubt it contains no provision for a statutory presumption of correctness to attach to the entries in the maps. In the Municipality the map wag prepared under the Calcutta Survey Act which was made applicable to mufassil Municipalities by virtue of Sec.223A, Bengal Municipal Act, 1884. The Calcutta Survey Act has been referred to at the hearing and no doubt it contains no provision for a statutory presumption of correctness to attach to the entries in the maps. At the same time, it still remains a fact that the map is a map prepared under the authority of Government and a presumption of correctness attaches to it under Section 93, Evidence Act; while similarly, the entries made in the khasra being entries made in an official record by public officers in the discharge of their duties are themselves relevant facts and may be considered by the Courts as evidence of possession from which the Courts may, if they think fit, draw an inference as to title and, therefore, if from these entries the lower appellate Court has thought fit to find that possession has all along been with the Municipality and from that he has drawn the inference that title is with the Municipality, it does not seem to me that I can say that there is any error of law committed in coming to the finding." In the present case, the circumstances are different. The survey khasra itself has, admittedly, not been finally published, and one cannot be certain as to what would have been the final view of the survey authorities. The survey khasra may be admissible in evidence, but in loses much of its value not having been finally published. Besides, as I have said above, the survey officers, under the Calcutta Survey Act, had no power to prepare a record-of-rights, and as such, any note made in that khasra that plot 1154 is "gairmazrua am" will not help the plaintiff. 8. Now, let us see the evidence that has been led in this case on behalf of the plaintiffs to establish their claim. A number of witnesses have been examined to prove that they have taken a short cut for going from the municipal road to the District Board road through this plot No. 1154 by walking over it. It is admitted that no vehicular traffic passess through this plot no. 1154. It has been used by pedestrians only. A number of witnesses have been examined to prove that they have taken a short cut for going from the municipal road to the District Board road through this plot No. 1154 by walking over it. It is admitted that no vehicular traffic passess through this plot no. 1154. It has been used by pedestrians only. It is also admitted that there are roads connecting the District Board road with municipal roads a little to the north and south of the plot in dispute. Thus, it appears that plot no. 1154 being parti was used by persons who wanted to go from the municipal road to the District Board road as a short cut. Muhammad Ismail (p. w. 13) has admitted in his evidence; "the disputed land during the rainy seasons becomes a little dirty and is overgrown with grass." Thus it is clear that plot No. 1154 cannot be said to have been used as a sarak. It was a parti piece of land, and it appears that the owner, defendant 3, had not objected to pedestrians passing through this plot from the municipal road to the District Board road. From the evidence of P. W. 10, it appears that the disputed plot is 10 to 12 cubits broad and about 20 cubits long. Now, what kind of right can be claimed by persons who pass through such parti land by taking a short cut for going from one road to another? A similar question was considered by a Division Bench of this Court in the case of Nasiruddin V/s. Deokali, A. I. R. (16) 1929 pat. 124 ; (115 I. C. 884). Courtney-Terell C. J., with whom Jwala Prasad J. concurred, while delivering the judgment observed as follows: "In English law the exercise of a right of way and similar positive easements for a prolonged period gives rise to the presumption that such exercise was of right, that is to say, it is presumed that the right of passage was exercised without any permission, express or implied, on the part of the owner of the servient tenement. This is because social conditions and the nature of landed property in England are such that landowners are particularly jealous of their exclusive right and the familiar appearance of the notice boards to be seen in England bearing the inscription trespassers will be prosecuted is an indication of the views held by the owners of property. Accordingly, it is to be presumed that if the owner of the dominant tenement has for a long period passed over the servient tenement that he did ft from the beginning with a claim of right, for, it is unlikely that if he had not such a right that the owner of the servient tenement would have allowed him to pass. In India, however, and it may be in other countries where such views of the exclusiveness of landed property do not prevail a mere period of long user will not give rise to the presumption. It is customary for the owner of a piece of waste land not to raise any objection to the passage of strangers over such land. It was pointed out by the Calcutta High Court in the leading case of Shaikh Khoda Buksh V/s. Shaikh Tajuddin, 8 C. W. N. 359, that in such circumstances mere long user gives rise to no such presumption as is to be inferred in England and that whether or not long user creates the presumption that its beginning was founded on a claim of right will depend upon the locality, the customs of the people, and if may be, the relationship between the respective owners of the dominant and servient tenements." The above observation depicts the true position in this part of the country. In fact nobody objects to any person passing over a parti piece of land as long as it remains unoccupied. But it cannot be said that when the owner wants to use that parti piece of land in some other way, say by erecting building on it, he will be precluded from doing so. 9. The learned advocate for the respondents referred us to the case of Chairman, Howrah Municipality V/s. Kketra Kristo Mitter, 4 C.L.J. 343 : (33 cal. 1290). In that case the dispute related to the claim of compensation in respect of a burning ghat which had been acquired under the provisions of the Land Acquisition Act. 9. The learned advocate for the respondents referred us to the case of Chairman, Howrah Municipality V/s. Kketra Kristo Mitter, 4 C.L.J. 343 : (33 cal. 1290). In that case the dispute related to the claim of compensation in respect of a burning ghat which had been acquired under the provisions of the Land Acquisition Act. Their Lordships of the Calcutta High Court in that case observed as follows : "When the owner gets apart land for the use of the public and formally declares that such is his intention, or where he conveys land to a municipality or to trustees to hold for the use of the public, the dedication is an express one. An implied dedication arises by operation of law from the acts of the owner and is really founded upon the principle of estoppel; it proceeds not upon the principle that a grant has actually been made, but rather on the principle that the owner having allowed the public to enjoy the user for any particular purpose, is estopped from denying the right of the public to the enjoyment of such user. It is not necessary for our present purposes to consider what would amount to acquiescence on the part of the owner sufficient to raise the presumption; but it is quite clear that exclusive and continuous user by the public with the owners knowledge and acquiescence for the prescriptive period will raise the presumption of a grant or dedication to the public." So, from this judgment also, it is quite clear that in any view of the matter, the right which the plaintiffs can claim to have acquired is the right to pass through this plot of land on foot. The claim of acquisition of any right by lost grant can only he limited to this extent only, and, as long as there has been some space left for a person to walk through this plot from the municipal road to the District Board road, that right cannot be said to have been infringed. In this case defendant l has left a passage about three feet wide while erecting his building, and, in my judgment, this is sufficient for the passage of a person on font from one road to the other. The plaintiffs can claim no higher right; nor can they claim removal of the building that has been constructed by defendant 1. In this case defendant l has left a passage about three feet wide while erecting his building, and, in my judgment, this is sufficient for the passage of a person on font from one road to the other. The plaintiffs can claim no higher right; nor can they claim removal of the building that has been constructed by defendant 1. 10 As for the right of air and light claimed by the owner of the house on plot no. 1155, suffice it to say that the evidence adduced in the case does not establish a perfected right by lapse of time. Besides this as defendant 1 has left a space of 3 feet it is sufficient for the enjoyment of the right of air and light by the owner and occupier of the house standing on plot no. 1155. 11. As regards the right, if any, having vested in the municipality, it cannot be considered in this suit as framed. The municipality, it appears had never claimed this piece of land as belonging to it and the municipal authorities had, in fact, given sanction to defendant 1 to construct this building. The right of the municipality, however, does not fall to be considered in the present suit as framed. 12. In the view that I have taken, as mentioned above, the plaintiffs are not entitled to the reliefs sought in the present action, and the suit is liable to be dismissed. 13. The result, therefore, is that the appeal is allowed, the judgments and decrees of the Courts below are set aside, and the suit of the plaintiffs is dismissed with costs throughout. Sinha, J. 14 I agree.