JUDGMENT : ( 1. ) THIS appeal under section 100 of the Code of Civil Procedure has been filed by the defendant against the judgment and decree dated 23-11-1968 passed by the Additional District Judge, Damoh, in Civil Appeal No. 4-A of 1967. ( 2. ) BRIEF facts of the case are that the plaintiff, who died during the pendency of the present appeal and has been substituted by his legal representatives, had filed a suit against the defendant for issue of a permanent injunction restraining the defendant from using the passage shown in the map (Ex. P-2), to close the doors shown by letters of her house opening towards the passage, to remove the Chajja shown by letters of her house under construction and also to remove the bricks collected on the said passage. According to the plaintiff, Mst. Umabai was the owner of the plot bearing khasra No. 3598 situate in Civil Ward No. 1, Damoh town. She sold her land in parts to different persons including the plaintiff Shankar Sunar (now purchased by Babu Bhaiya Tandon), Pandurang Shinde (now purchased by babulal Jaiswal) and the defendant. The plaintiff also built a cinema house known as Jagdish Talkies on this plot as shown in the plaint map. The passage was included in his sale-deed by the vendor and as such he had become the owner of that including the open land purchased by him by a registered sale-deed dated 9-8-1944 (Ex. P-4) from Mst. Umabai. His allegation was that this passage was a private passage and the defendant had no right to use the same without his consent. Inspite of notice when the defendant did not abstain from acting in that manner and even started constructing a chajja which would interfere with the passage, he filed the present suit for the reliefs mentioned above. ( 3. ) THE defendant contested the suit and disputed the claim of the plaintiff. According to her, the passage was being used by all the plot holders of khasra No. 3598 and the same was never sold to the plaintiff. That being so, according to her, it was not his personal property. She further pleaded that the passage is a public road and is being used by every one and as such she even had a right to use the same. That being so, according to her, it was not his personal property. She further pleaded that the passage is a public road and is being used by every one and as such she even had a right to use the same. She also pleaded that she was one of the purchasers of a piece of land out of Khasra No. 3598 vide registered sale-deed dated 25-4-1938 from Mst. Umabai and has built a house thereon. She further pleaded that the suit passage was left free for use by all the plot holders. According to her, the two doors were opened at the time when the house was constructed even prior to the purchase of land by the plaintiff from mst. Umabai. She denied having constructed any chajja shown by letter as alleged by the plaintiff. No doubt she admitted that bricks were kept on the passage, but they were stolen and only some of them were left there. Those bricks were required for repair and alteration in the house. Thus, according to her, the plaintiff had no right to obstruct her use of the suit passage and prayed that the suit was liable to be dismissed. ( 4. ) THE trial Court decreed the suit. In appeal filed by the defendant, the lower appellate Court affirmed the judgment and decree of the trial Court. ( 5. ) AT the outset I may mention here that the legal representatives of the original plaintiff were neither present nor represented in this Court inspite of service of notice. ( 6. ) HAVING heard learned counsel for the defendant, I am of opinion that this appeal has to be partly allowed. Learned counsel for the defendant submitted before me that the finding of the Courts below that the suit passage belongs to the plaintiff is not correct although he admitted that in the sale-deed dated 9-8-1944 (Ex. P-4) in his favour by Mst. Umabai the suit passage has been included. He invited my attention to the other sale-deeds executed by mst. Umabai in favour of other purchasers and subsequent sale-deeds in favour of the plaintiff by those purchasers so as to show that the plaintiff was not the owner of the suit passage. Having perused the sale-deeds Ex. D-3 dated 12-2-1944, Ex. D-2, dated 1-9-1946, Ex. 1-D-1, dated 1-3-1951 and Ex. Umabai in favour of other purchasers and subsequent sale-deeds in favour of the plaintiff by those purchasers so as to show that the plaintiff was not the owner of the suit passage. Having perused the sale-deeds Ex. D-3 dated 12-2-1944, Ex. D-2, dated 1-9-1946, Ex. 1-D-1, dated 1-3-1951 and Ex. 1-D-2 dated 1-3-1951,i am of opinion that it cannot be said that the suit passage was not included in the sale-deed (Ex. P-4) in favour of the plaintiff. None of these sale-deeds convey any title in favour of the purchasers with respect to the suit passage. All that can be inferred from these sale-deeds is that the suit passage was left as a common passage for the purchasers of the plots whose houses were located on either side of the same. But as regards the sale-deed (Ex. P-14) in favour of the defendant by Mst. Umabai, there is no reference to the suit passage or reservation of any right of the said defendant over it. In the circumstances, I do not agree that the finding of the Courts below that the suit passage was the property of the plaintiff having been included in his sale deed dated 9-3-1944 (Ex. P-4) is in manner incorrect. ( 7. ) THE real question that arises for consideration in the present appeal is whether the defendant could be restrained from using the suit passage although the title of the said passage vests in the plaintiff. For the determination of this question another question that crops up for decision besides the main question, is whether a presumption of dedication on the part of the plaintiff can arise on the admitted position that the suit passage was being used by the public for long years. I thought to advert to this important aspect of the case in the interest of justice as neither the Courts below nor the learned counsel for the defendant adverted himself to the same. There is overwhelming evidence on record of both the sides that the suit passage is being used by everyone, i. e. , by the public. It has come in the evidence of the plaintiffs witness Bhawan Mukund Tatke (P. W. 5) that the same had been in use by the public since 1947. This passage connects the main road and the picture house built by the plaintiff. It has come in the evidence of the plaintiffs witness Bhawan Mukund Tatke (P. W. 5) that the same had been in use by the public since 1947. This passage connects the main road and the picture house built by the plaintiff. According to Laxmi Narayan Tandon (P. W. 6), Ram prasad Katare (P. W. 7), Tulsiram (P. W. 8) and Moolchand (P. W. 9) the passage in question is used by the public since long. That being so, the point that has to be determined now is whether a presumption of dedication with regard to the suit passage in favour of the public can be drawn. ( 8. ) THE essential ingredient in order to come to the conclusion as to whether there has been a valid dedication by a owner of the land is that it must be proved that there is a clear intention on the part of the owner to dedicate his land accordingly. There must be, in other words animus dedicandi on the part of the owner and the user by the public must be based on the sanction received from such intention of the owner. Sometimes long open user of a way by the public leads to a presumption that the land was dedicated as a highway which principle can also be applied for a passage. Therefore, user as of right by the public justifies the inference of an intention to dedicate the land as a highway, but it is always a question of fact whether such intention can be inferred or not. The mode of acquisition by dedication deserves further attention as it bears some analogy with the rights of easements. Such dedication may be made by on express grant or it may be presumed from a long and continued user on the part of the public. [see Laxman v. Tukia and others, (AIR 1918 Nag. 166=14 N L R 78.)]. It is no doubt true that where a dedication is by the express terms of a grant or by implication from long and continued user by the public, such user being only a piece of evidence warranting a rebuttable presumption and no more. It cannot be denied that in certain circumstances of long user dedication may be inferred but it is essential that the user must be as of right. It cannot be denied that in certain circumstances of long user dedication may be inferred but it is essential that the user must be as of right. In order to raise a presumption of dedication, the weight of evidence of public user depends upon several factors. In the instant case, the plaintiffs own witnesses make it clear that the suit passage was in use as a public way since the year 1947. The passage lies between the houses built on the vacant plots which were sold by the owner of the respective purchasers of those plots. This passage also connects the main road with the cinema talkies built by the plaintiff. Not only the pedestrians but also carts, motor vehicles and tongas pass by that passage regularly; not only for going to the picture house but also for going to other destinations. Therefore, on the basis of the evidence on record, there is no manner of doubt in holding that the suit passage has been long open user of a way by the public leading to a presumption that the land was dedicated as a public passage even though the plaintiff may be the owner thereof. A dedication for user as a public way does not altogether deprive the owner of his rights in the soil altogether. His rights are twofold, firstly, he has a right in common with the general public to use the dedicated land and as a highway. Secondly, he has an ownership right in the land which he may enjoy in any way he likes but not inconsistent with the public right of passage over it. [see:bhukan Lal v. Mir, (2 N L R 110.) and Tata v. Sardul Singh, (10 All. 553. ). ] ( 9. ) IN the instant case, it is no doubt true that the ownership of the suit passage rests with the plaintiff but he will have no right in the circumstances of the case to obstruct the passage of the defendant since the entire public is using the suit passage. I find it difficult that the right of the defendant can in any manner be curtailed for using the same. I find it difficult that the right of the defendant can in any manner be curtailed for using the same. In this view of the matter, differing from the Courts below I hold that the plaintiff had no right for issue of a permanent injunction restraining the defendant from using the suit passage and in consequence thereof also no right to get her two doors of the house shown in the plaint map closed. But to the extent of his other relief regarding a direction to the defendant to remove and demolish the chajja V under construction must be granted and also the removal of the bricks collected by her on the passage. ( 10. ) FOR the reasons stated above, this appeal is partly allowed. The judgment and decree of the Courts below are modified to the extent they relate to the user of passage and closing of doors on the part of the defendant as stated in the preceding paragraph. The decree of the Courts below so far as they relate to demolition of the chajja and removal of bricks are affirmed. In the circumstances, I direct the parties to bear their own costs throughout. Appeal partly allowed.