JUDGMENT The point for consideration in this second appeal is whether or not on the basis of lost grant or by prescriptive user, the plaintiff-respondent No. 1. Sm. Parul Bala Dasi, has any right of way over the disputed strip of land measuring 13 feet in length and 10 feet in breadth lying on the north-west of C.S. plot No. 507 corresponding to R.S. Dag No. 744), Khatian No. 115 Mouza Jadavpur, Originally, Parul Bala, the plaintiff respondent No. 1, along with five others had filed the suit out of which this second appeal arises inter-alia for declaration of the plaintiffs right of way and for further declaration that the defendants were not entitled to obstruct the enjoyment of the said right and for permanent injunction to restrain the defendants from interfering with the said right of the plaintiffs. Subsequently, a prayer for mandatory injunction was inserted by the amendment of the plaint of the suit. Subsequently, the plaintiff nos. 1, 3 and 4 jointly with the contesting defendants had filed petitions of compromise. The learned Munsiff, 1st court, Alipore, had dismissed the suit on compromise in terms of the said petition so far as the plaintiff Nos. 1, 3 and 4 are concerned. The trial court had also dismissed the suit on merits with costs. Parul Bala, the plaintiff No. 5, being aggrieved by the said decision had preferred an appeal in the lower appellate court. The learned Subordinate Judge had dismissed the said appeal. Thereafter, Sm. Parul Bala had preferred S.A. No. 1721 of 1972. On 28th June, 1974 I had allowed the said appeal and had remanded the matter to the Lower Appellate Court for re-hearing in accordance with law and in the light of the observations contained in the Judgment. I had inter-alia observed that the Lower Appellate Court would be entitled to consider whether additional evidence should be received. 2. After remand, the learned Subordinate Judge, 4th Court, Alipore, has allowed the appeal of the plaintiff No. 5 and has decreed the suit. The learned Subordinate Judge has declared the plaintiff No. 5's right of way over the disputed strip of land by lost grant as well as prescriptive user. The learned Subordinate Judge has also granted decrees for permanent and mandatory injunctions against the defendants. 3. Mr. The learned Subordinate Judge has declared the plaintiff No. 5's right of way over the disputed strip of land by lost grant as well as prescriptive user. The learned Subordinate Judge has also granted decrees for permanent and mandatory injunctions against the defendants. 3. Mr. Sudhis Dasgupta, learned Advocate for the appellant, has submitted that the Judgment of the lower appellate court is not a proper judgment of reversal. Mr. Dasgupta has further submitted that the lower appellate court misread the evidence when it observed that immemorial user either by prescriptive right or by lost grant had been established. According to Mr. Dasgupta, the lower appellate court erred in law in not applying the correct legal tests for ascertaining whether a presumption of lost grant could be made on the proved facts of the case. Mr. Dasgupta's further submission is that there was no conflict between the C.S. and the R.S. Records and even the R.S. Records did not prove that the plaintiffs or any of them had acquired a prescriptive right of user. Mr. Dasgupta also submitted that the Lower Appellate Court did not consider material parts of the evidence and it was also patently wrong when it had observed that the P.Ws. were not cross-examined with reference to their statement made during examination-in-chief about the existence of the disputed pathway. 4. Before I discuss whether or not the lower appellate court was correct in finding that the plaintiff No. 5 had successfully proved her case of easement right over the disputed passage on the basis of Lost Grant and Prescriptive Right. I may briefly set out the relevant principles of law. 'Prescription' has been defined as a title acquired by use or enjoyment had during the time and in the manner fixed by law. Under the common law an enjoyment in order to confer title by prescription must have continued from the time of human memory. To obviate the difficulty of proving the doctrine of lost grant was evolved (vide Gale on Easement, 14th Edn., Chapter IV, page 133). "When the court finds an open and uninterrupted enjoyment of property for a long period unexplained, Omnia praesumuntur rite ease acta, and the court will, if reasonably possible, find a lawful origin for the right in question" (vide Farwell J. in (1) Att-Gen v. Simson, (1901) 2 Ch. 671 (698) quoted by Mookerjee ACJ. "When the court finds an open and uninterrupted enjoyment of property for a long period unexplained, Omnia praesumuntur rite ease acta, and the court will, if reasonably possible, find a lawful origin for the right in question" (vide Farwell J. in (1) Att-Gen v. Simson, (1901) 2 Ch. 671 (698) quoted by Mookerjee ACJ. in Kashi Nath v. Murari Chandra, 31 CLJ 501). (See also Gale on Easement, 14th Edn. at page 137). According to these authorities the gist of the principle upon which a modern lost grant is presumed is that the state of affairs is otherwise unexplained. The leading case on the doctrine of lost grant is (2) Dalton v. Angus, (1878) 4 QBD 162; (1881) Appeal Cases 740. The House of Lords in the said case held that where there had been upward of 20 years uninterrupted enjoyment of an easement there would be a presumption of Lost Grant. The said presumption of Lost Grant cannot be rebutted by proving that no grant in fact was made because the long enjoyment either estops the servient owner from relying on such evidence or overrides it when given. But at the same time, the House of Lords in (2) Dalton v. Angus (supra) upheld the view of Thesiger KJ. of the Court of Appeal that the presumption of Lost Grant may be negatived by showing legal incompetence as regards owner of the servient tenement to grant an easement, or a physical incapacity of being obstructed as regards the easement itself, or an uncertainty or secrecy of enjoyment putting out, of the category of all known easements." Gale on Easements, 14th Edn. page 142 has set out a passage from the judgment of the Court of Appeal in (3) Tehidy Mineral Ltd. v. Norman (1971) 2 QB 28, which has pointed out the effect of (2) Dalton v. Angus (supra). Their Lordships observed that uninterrupted enjoyment must have the necessary qualities to fulfil the requirements of prescription. In other words, the character and nature of enjoyment for acquiring easement by lost grant are same as those for acquiring a prescription right. 5. Various decisions cited by Mr. Dasgupta, learned Advocate for the appellant, really affirm the above principles that to raise a presumption of lost grant there must be uninterrupted enjoyment of the right for at least 20 years openly as of a right. 5. Various decisions cited by Mr. Dasgupta, learned Advocate for the appellant, really affirm the above principles that to raise a presumption of lost grant there must be uninterrupted enjoyment of the right for at least 20 years openly as of a right. An enjoyment which is permissive or otherwise explained cannot be as of a right and, there could be no acquisition of an easement right by lost grant even when such right has been enjoyed for more than 20 years. Banerjee J. in (4) Shaikh Khoda Buksh v. Shaikh Tajuddin, 8 CWN 359 at page 360-61 pointed out that in order to raise a presumption of lost grant the particular user must be as of a right. The learned Judge with approval quoted the following passage from U.N. Mitter’s Law of Limitation and Prescription, 3rd. Edn., page 424 (foot-note) :- "The nature and character of the servient land, the friendship or relationship between the servient and dominent 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." Banerjee J. in (4) Shaikh Khoda Buksh v. Shaikh Tajuddin (supra) remanded the case to the lower appellate court for determining whether the user had been as of a right or was of a permissive nature. Pigot and Rampini JJ. in (5) Mesrer Mullick v. Hafizuddi Mullick and others 13 CLJ 316, took the same view regarding the elements to constitute user as of a right. The above principle enunciated by Banerjee J. in (4) Shaikh Khoda Buksh v. Shaikh Tajuddin (supra) was relied upon by a Division Bench of Patna High Court in (6) Nasiruddin and Another v. Deokali and others, AIR 1929 Patna 124 and by a Single Bench of the Bombay High Court in (7) Tukaram Bajaram Suple and Others v. Sonha Chindhu Mali, AIR 1959 Bombay 63. Mr. Dasgupta has also drawn my attention to the decision of the Supreme Court in (8) Manohar Das Mohanta v. Charu Chandra Pal and others, AIR 1955 SC 228 at page 230-31. Mr. Dasgupta has also drawn my attention to the decision of the Supreme Court in (8) Manohar Das Mohanta v. Charu Chandra Pal and others, AIR 1955 SC 228 at page 230-31. The Supreme Court in Monohar Das Mohanta v. Charu Chandra Pal and others (Supra), held that presumption of lost grant could not be made if there was no person competent to make a grant or the grantee would be incompetent to be a recipient of such grant. This was the basis of the principle that there could be no presumption of lost grant in favour of a fluctuating body of persons (see observations of Bijan Kumar Mookherjee J. in (9) Asrabulla and others v. Kismatulla Haji Chaudhury and others, AIR 1937 Calcutta 245, which was approved by the Judicial Committee in (10) Lakshmidhar v. Rangalal, AIR 1950 PC 56 and by the Supreme Court in (11) Raja Broja Sundar Deb and Another v. Moni Behara and others, AIR 1951 SC 247 . 6. But at the same time it is necessary to bear in our minds that Banerjee J. in Shaikh Khoda Baksh v. Shaikh Tajuddin (Supra) had also laid down that whether an inference of lost grant from user would be proper and legitimate would be a question of fact. Sir Asutosh Mookerjee ACJ and Sir Ernest Edward Fletcher J. in (12) Kasi Nath Bhattacharjee and others v. Murari Chandra Pal, 31 CLJ, 501, allowed a Letters Patent appeal from the judgment of Newbould J. inter-alia holding that the question whether an inference of lost grant should be made from 20 years user was a question of fact for decision by the court of fact and not by the High Court in Second Appeal. In this connection see also the observation in (13) Siti Kanta Pal and Another v. Radha Gobida Sen and Others, 33 CWN 517. The Subordinate Judge having found the legal origin had been established, it was not competent for this Court in Second Appeal to interfere with the said finding. Therefore, in order to succeed, the defendant appellant must establish that the lower appellate court had committed some error of law, e.g., by not applying correct principles of law or by reason of misreading or non-consideration of evidence etc. 7. Mr. Therefore, in order to succeed, the defendant appellant must establish that the lower appellate court had committed some error of law, e.g., by not applying correct principles of law or by reason of misreading or non-consideration of evidence etc. 7. Mr. Dasgupta, learned Advocate for the appellant, has relied upon the observations of the trial court to the effect that the suit plot and also some other plots, namely, plots Nos. 504, 506, 509, 510 belonged to different groups of families who were not only close neighbours but were also related inter se. These families had their homestead along with the tank and garden scattered over these plots. Therefore, the trial court had inferred that there was no common pathway "but the people who were mostly neighbours and relations might have passed over these land by way of mutual understanding and convenience. By so passing and using the lands there, can there be any right of casement or way over these plots. The answer is in the negative." The trial court in this connection had relied upon the decision in (13) Siti Kanta Pal and Another v. Radha Gobinda Sen and Others (supra) and (5) Messer Mullick v. Hafijuddin Mullick and Others (supra). 8. The Lower Appellate Court in its judgment after remand did not specifically deal with the above aspect of the case. The approach of the lower appellate court was that the existence of the pathway over the disputed strip of land had been proved. The same was found to be a continuation of a village pathway. According to the lower appellate court the plaintiff by evidence had proved the user of the said pathway since time immemorial and, therefore, the plaintiff had easement right over the disputed passage on the basis of lost grant and prescription. I am unable to hold that the lower appellate court had committed any error of law in making the above conclusion in favour of the plaintiff No. 5. The Revisional Records were finally published during the pendency of this case. In the finally published R.S. Khatian the C.S. Plot No. 507 was split up into Plot Nos. 844 and 845 and the total area was shown as .0572 acres which was a little more than the area recorded in the C.S. records. The Revisional Records were finally published during the pendency of this case. In the finally published R.S. Khatian the C.S. Plot No. 507 was split up into Plot Nos. 844 and 845 and the total area was shown as .0572 acres which was a little more than the area recorded in the C.S. records. The R.S. Dug No. 844 was recorded as a rasta with the remarks that the plaintiff No. 5 and others had a right of way over the same. The lower appellate Court has held that the trial court was not right in not considering the presumption of correctness of the said R.S. Khatian which stood in favour of the plaintiffs. The lower appellate court has placed strong reliance upon the R.S. Khatian. 9. Mr. Dasgupta, learned Advocate for the appellant, has submitted that there was no conflict between the C.S. Records which described the suit plot as a doba and the R.S. Records. According to Mr. Dasgupta each record had its presumption and the R.S. records did not prove user of the suit plot from time immemorial. Mr. Dasgupta in this connection relied upon the observations of Mukherjee J. in (14) Jatindra Nath Mullick v. Satya Kinkar Sain, 42 CWN 445 at page 447. The C.S. records are evidence of the state of things in existence at the time of their final publication. The records do not say that the irrigation rights were based on ancient grant or immemorial user. They were undoubtedly recognised at the time when the records were prepared but we get no indication as to how, or when, they were created." 10. In the instant case the suit plot was recorded as a doba in Dag No. 507, C.S. Khatian No. 115. In the R.S. Record, however, in Column 23 the suit plot has been described as a pathway for the owners of the neighbouring plots. Thus, the C.S. and the R.S. Record are not consistent. Mudholkar J. in (15) Shri Raja Durga Sing of Solon v. Dholu and others, AIR 1963 SC 361 at page 364 (right hand column) observed :- "The learned Judicial Committee has omitted to bear in mind the provisions of Section 44 of the Act which give a prescriptive value to the entries in revenue records. Mudholkar J. in (15) Shri Raja Durga Sing of Solon v. Dholu and others, AIR 1963 SC 361 at page 364 (right hand column) observed :- "The learned Judicial Committee has omitted to bear in mind the provisions of Section 44 of the Act which give a prescriptive value to the entries in revenue records. It was argued before us that there are prior entries which are in conflict with those on which the learned District Judge has relied. It is sufficient to say that where there is such a conflict with those on which the learned District Judge has relied, it is the later entry which must prevail. Indeed from the language of Section 44 itself if follows that where a new entry is substituted for an old one it is that new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry." These observations of the Supreme Court with reference to presumption of records under the Punjab Tenancy Act, 1887 may be equally applied in case of a conflict between the entries in the records prepared under the Bengal Tenancy Act and the entries in the revisional records prepared under the West Bengal Estates Acquisition Act. 11. The respondents have also relied upon the decision of the Supreme Court in (16) Ambica Prosad Thakur and Others v. Ram Ekbal Raj, AIR 1966 SC 605 . The survey records of 1882, 1895, 1904 and 1909 produced in the said case disclosed that the ancestors of the plaintiffs had some of the frontier plots of Dubhamal. The question was whether any inference should be drawn whether the ancestors of the plaintiffs held these plots during 1845 to 1863. Rachawat J. in Ambika Prasad Thakur and others v. Ekbal Rai (Supra) at page 612, paragraph 15 had observed :- "Now, if a thing or a state of things is shown to Exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in Illustration (d) to section 114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, give a separate illustration. The presumption of future continuance is noticed in Illustration (d) to section 114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, give a separate illustration. The rule that the presumption of continuance may be operated retrospectively has been recognised both in India, see (17) Anangamanjari Chowdhuranl v. Tripura Soondari Chowdhurani, 14 Ind. App. 101 at page 110(C), and England See (18) Bristow v. Cormican (1878) 3 AC 641 at pp. 669, 670, (19) Doe v. Yound (1845) 8 QB 63 : 115 ER 798. The Board observed in (20) Manmatha Nath v. Girish Chandra Roy, 38 Cal. WN 763 at page 770 (AIR 1934 Cal. 707 at page 708) and (21) Hemendra Nath v. Jnenendra Prosanna, 40 Cal WN 115 at page 117 (AIR 1935 Cal 702 at page 704), that there is no rule of evidence by which one can presume the continuity of things backwards cannot be supported. The presumption of continuity weekens with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances. Bachawat J. had further observed that in the case before the Supreme Court the High Court had rightly refused to draw a backward presumption. In view of these authorities which are binding upon me, I must reject the extreme submission that in no case a retrospective presumption can be drawn from the entries in a record of rights. The court having regard to the facts of a particular case and the surrounding circumstances is entitled to presume both a forward and backward continuity of the said entries. Undoubtedly, it is for a court of fact to decide whether or not such a backward presumption from the record should be made or not. Mr. Roychowdhury, learned Advocate for the respondent, has also pointed out that the above remarks about the right of user of the plot as a pathway for the owners of the neighbouring plots were authorised by the provisions of the West Bengal Estates Acquisition Act and the Rules framed thereunder. Mr. Roychowdhury, learned Advocate for the respondent, has also pointed out that the above remarks about the right of user of the plot as a pathway for the owners of the neighbouring plots were authorised by the provisions of the West Bengal Estates Acquisition Act and the Rules framed thereunder. Clause (k) of Rule 26 of the West Bengal Estates Acquisition Rules provide for recording "of any right of way or other easement attaching to the land for which record of rights is being prepared or revised." In other words, the said entry about the right of user in the RS Records raised a presumption about the existence of a right of way. 12. Therefore, it was for the defendants to rebut the presumption of the correctness of the said entries in the RS Records. There is considerable force in the submission made on behalf of the respondents that both the Trial Court and the lower appellate court had found existence of a pathway and the user of the same for a long time (vide pages 7 and 8 of the paper book of the second appeal). But the trial court declined to uphold the plaintiffs claim on the ground that the parties were mostly neighbours and relations and might have passed over those lands by way of mutual understanding and convenience. Therefore, by so passing and using the land of the other, they could not require any right of easement of way over these plots. The lower appellate court pages 17 and 20 of its judgment set out in the paper book found that the disputed passage was a part and parcel of the village pathway or rather a continuation of the same and the said passage was in existence since time immemorial. 13. We may next take up the question whether the lower appellate court had erred in law in drawing an inference of prescriptive right from such long user of the suit plot as a pathway. The Judicial Committee in (22) Rajrup Koer v. Abul Hossain ILR (1880) 6 Cal. 394, held that enjoyment of a right of water-course on the defendant's land for more than 20 years would be referrable to a legal origin and such long user afforded evidence giving rise to a presumption that a grant or an agreement had been made creating an easement. In (23) Bhola Nath Nundi v. Midnapore Zamindary Co. 394, held that enjoyment of a right of water-course on the defendant's land for more than 20 years would be referrable to a legal origin and such long user afforded evidence giving rise to a presumption that a grant or an agreement had been made creating an easement. In (23) Bhola Nath Nundi v. Midnapore Zamindary Co. ILR (1903) 31 Cal. 503, cultivators owning particular plots had enjoyed from pasturage over the waste lands of the village. Lord Macnaghten J. in the said case observed :- It appears to their Lordships that on proof of the face from time immemorial, there could be no difficulty in the way of the court finding a legal origin for the right claimed. Applying these principles the lower appellate court was entitled to hold that a long user of the suit land as a pathway raised a presumption of lost grant. It was for the final court of fact to consider whether such user had been otherwise explained. It was not for the plaintiff to establish by positive evidence the legal origin of their right and in case the defendants fail to explain the facts and circumstances relating to uninterrupted and long user of the suit land as a pathway, the plaintiff No. 5 ,was bound to succeed. 14. In the instant case, the defendants stated that there was no existence of any pathway over the disputed plot of land they had altogether denied that either the predecessor of the plaintiff or the plaintiffs had been using the suit plot as a pathway for over 20 years. The defendants did not plead that they had granted permission to the predecessor of the plaintiffs to use the suit plot as a passage for approaching the village pathway. In this case long user of the suit plot as a pathway has been found. The question is whether such user was as of a right. In other words, whether such enjoyment and user had the qualities for acquiring either a prescriptive right or for raising a presumption for lost grant. A Division Bench of the Madras High Court in (24) M. Ratanchan Chordia and others v. Kasim Khaleeli AIR 1964 Mad. The question is whether such user was as of a right. In other words, whether such enjoyment and user had the qualities for acquiring either a prescriptive right or for raising a presumption for lost grant. A Division Bench of the Madras High Court in (24) M. Ratanchan Chordia and others v. Kasim Khaleeli AIR 1964 Mad. 209 , held that a long continued user gives rise to a presumption which is however rebut-table to proof to the contrary, that it must have been as of a right and not with the leave and licence of another. Their Lordships relied upon the decision in 1891 App. Cases 228, AIR 1922 Mad 5 and AIR 1921 Bom 430. The learned Judges in paragraph 11 of their judgment held that the true meaning of the expression of a right is that the enjoyment of the right should not be secret or by stealth or by sufferance or the leave and licence of another person. It should be nec precario. Dependence on the will of another would render the right precarious by robbing it of all freedom and volition on the holder of the right. The words 'a user of right' denote that it is not enough that the right is merely exercised but that it should be exercised consciously in assertion of the right claimed. A mere user of the right of way by passing and re-passing may not as such be conclusive evidence on the question whether the user has been as of right or not. But persons who exercise the right of way need not openly proclaim that they are doing so because they have a right to do so. Their Lordships also correctly pointed out that there was nothing improper in a court drawing a presumption from long continuous user of right that such user which was open, notorious and persistent must have had a legal origin and must have been in the conscious exercise of a right. The question is pre-eminently one of fact and while there are no infallible tests which could be applied to find out whether a user was one as of right or not it would not be improper for any Court to draw an inference from long user as such that it was rather as of right than not. The question is pre-eminently one of fact and while there are no infallible tests which could be applied to find out whether a user was one as of right or not it would not be improper for any Court to draw an inference from long user as such that it was rather as of right than not. I respectfully agree with the above statements of law and hold that the lower appellate court having drawn an inference of right of pathway from the long user by the plaintiffs predecessor and the plaintiff it cannot be said that it had committed any error of law warranting interference in second appeal. Another grievance of the appellant is that the lower appellate court had erred in law in observing that the plaintiffs witnesses were not cross-examined over the existence of the village pathway on the north of the disputed passage. The learned advocates for both parties took me through the oral evidence. I find that the lower appellate court in its judgment did not really observe that the plaintiff's witnesses were not cross-examined with reference to their statements in examination-in-chief that the disputed plot was used as a passage. But the lower appellate court at pages 18 and 19 of the paper book had mentioned that the defendants did not cross-examine the witnesses on the question whether there was existence of a village pathway on the north of the disputed passage. The cross-examination of PWs 2, 3, 4, 5 etc. were confined on the question whether the CS plot No. 507 was being used as a passage for approaching the admitted village pathway. The lower appellate court on analysis of the evidence found that the disputed passage was part and parcel of the village pathway and a continuation or an extension of the said village pathway. 15. The lower appellate court has also found that there was no other passage for ingress and egress from the plaintiff’s plot. The same was taken as a strong circumstantial evidence of plaintiff's user of the disputed land as a pathway as of a right. The lower appellate court in this connection relied upon the report of the Pleader Commissioner who found existence of a village pathway running over the disputed strip of land and ultimately joining the Union Board road. The same was taken as a strong circumstantial evidence of plaintiff's user of the disputed land as a pathway as of a right. The lower appellate court in this connection relied upon the report of the Pleader Commissioner who found existence of a village pathway running over the disputed strip of land and ultimately joining the Union Board road. The said commissioner also did not find existence of any other continuous pathway, from the plaintiff's plot of land. 16. Sitting in second appeal, I am not in a position to hold that the lower appellate court had committed any error of law by relying upon the said report of local inspection. In fact, the finding of the lower appellate court about the existence of a right of pathway was based mainly upon an assessment of oral evidence given by plaintiffs and the defendants witnesses. Therefore, the said findings are held concluded and not open to challenge in second appeal. Thus the decision of the case depended upon the assessment of evidence about the length of user and the character and nature of the same. Therefore, I am not in a position to interfere with the finding made by the lower appellate court that the plaintiff's No. 5's right of way on the basis of lost grant and prescriptive user had been established. 17. Before I conclude I may mention that the lower appellate court had decreed the suit only so far as the plaintiff No. 5 was concerned and not the other plaintiffs. At this stage I cannot consider whether or not apart from the plaintiff No. 5 any other plaintiff had a right of way over the suit land. For the foregoing reason, I dismiss this appeal. 18. In the facts and circumstances of the case, both parties will bear their respective costs throughout.