Jeenab Ali vs Allabuddin

In this appeal which arises out of a suit for establishment of the plaintiff's right of way over a certain plot of land, two questions arise for consideration, first, whether the Lower Appellate Court was right in holding that the plaintiff could acquire by user a right of way over the land in dispute on the ground that the right claimed is one, not against the landlord but against another tenant; and second whether if the first question is answered in the negative, the case should go back to the Lower Appellate Court for determination of the question whether the plaintiff is entitled to the way claimed as a way of necessity." Upon the first question, it is not disputed by the learned vakil for the respondent that a tenant cannot acquire a right of way by user against his own landlord; and as he very rightly admits, upon the authorities [see Udit Singh v. Kashiram ILR 14 All. 185 and Gayford v. Moffat 31 L.J. Ch. 610], the point could not very well be disputed. And upon the admitted facts of the case, which are that the land in question was formerly the khas potit land of the landlord and came to be occupied by the tenant defendant only for the last three or four years, the further question whether one tenant may not acquire against another tenant a right of way by user,--a question which does not appear to be settled by authority (see Daniel v. Anderson ILR 4. Ch. Ap. 133, and Goddard on Easements 5th Edition, p. 249) does not arise. The first question raised in the appeal must therefore be answered in the negative. It then becomes necessary to determine the second question; and upon this we are of opinion that on the facts alleged in the plaint the plaintiff would be entitled to succeed in this case if he has made out his allegation that the way in dispute is a way of necessity. The first Court in its judgment observes that the plaintiff has failed to make out that allegation; but upon this point the Lower Appellate Court has come to no decision. The case must therefore go back to the Lower Appellate Court in order that it may dispose of the appeal after determination of the question whether the way claimed is one of necessity. The costs will abide the result.