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Ram Saran and anr. Vs. Narayan Chandra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 496 of 1948
Judge
Reported inAIR1954Cal125
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 4; ;Evidence Act, 1872 - Section 32(4)
AppellantRam Saran and anr.;narayan Chandra and ors.
RespondentNarayan Chandra and ors.;ram Saran and anr.
Advocates:Bankim Chandra Banerjee, ;Hariprasanna Mukherjee and ;Prafulla Kumar Chatterjee, Advs.
DispositionAppeal dismissed
Cases ReferredBusoid v. Newaj Ahmed Khan
Excerpt:
- .....1350. his case was that since the above settlement he had been in cultivating possession of the disputed plots. the defendant no. 1 disclaimed any interest in c. s. plot no. 1680.3. the original defendant died during the pendency of the suit in the trial court and his heirs were substituted in his place. two of these heirs viz., the sons of johur muchi, adopted the written statement of the original defendant and contested the suit. the defence was. negatived and the suit was decreed by the learned munsif who made a declaration of the plaintiffs' alleged right of way over the disputed lands and also made an order for restoration of the lands to the former condition. the defendants were also restrained by an injunction from obstructing the pathways in future. against this decision of.....
Judgment:

Renupada Mukherjee, J.

1. The suit out of which this second appeal arises was instituted in the trial court by the plaintiffs on their behalf and also as representing the inhabitants of village Joy-kristapur and other neighbouring villages for a declaration of a public right of way over three settlement plots described in the schedule of the plaint. The allegation of the plaintiff in brief was that these three plots were being used by the villagers of Jaykristapur as well as of other villages as pathways from time immemorial for passage of men, cattle, cart etc., and such user was referable to some dedication or lost grant in some remote antiquity. It was further the case of the plaintiffs that defendant Johur Muchi began to convert these pathways into-agricultural plots from the last part of 1350-B.S. He is unjustified, according to the allegation of the plaintiffs, in preventing the plaintiffs and other people from using the pathways and hence the occasion for the suit. The pathways were described in three plots in the schedule of the plaint, the first plot comprising dag no. 1007 in its entirety and the remaining two plots comprising portions of C. S. dags 1178 and 1680.

2. The defence in brief was that the disputed lands never constituted pathways and they had all along been khas lands of the landlord and the defendant took settlement of two out of these three disputed dags viz., C. S. plots 1007 and 1178 on executing a kabulyat on the 19th Chaitra, 1350. His case was that since the above settlement he had been in cultivating possession of the disputed plots. The defendant no. 1 disclaimed any interest in C. S. plot no. 1680.

3. The original defendant died during the pendency of the suit in the trial court and his heirs were substituted in his place. Two of these heirs viz., the sons of Johur Muchi, adopted the written statement of the original defendant and contested the suit. The defence was. negatived and the suit was decreed by the learned Munsif who made a declaration of the plaintiffs' alleged right of way over the disputed lands and also made an order for restoration of the lands to the former condition. The defendants were also restrained by an injunction from obstructing the pathways in future. Against this decision of the Munsif an appeal was preferred by the defendants before the District Judge, Burdwan. The appeal was heard by a Subordinate Judge who dismissed it. So the defendants have preferred this Second Appeal.

4. Three points were taken by the learned advocate appearing on behalf of the appellant. I shall consider them one after another.

5. In the first place it was contended on behalf of the appellants that although the plaintiffs made a case of dedication or lost grant in the trial court, the lower appellate court upheld the alleged right of pathway as a customary right though no such custom was pleaded by the plaintiffs in the trial court. It was urged on behalf of the appellants that a village pathway can have its origin only in custom and as no case of custom was made out in the plaint, the courts below should have dismissed the suit on the face of it. This argument is somewhat misconceived because the pathways in question were claimed by the plaintiffs not on behalf of the people of any particular village but on be--half of members of the public irrespective of their residence in any particular village. It is true that the plaintiffs might be more immediately interested in the pathways as residents of village Jaykristapur, but they instituted the suit as representatives of not only village Jaykristapur but also of other neighbouring villages. In paragraph 2 of the plaint there is a distinct allegation that the pathways were being used from time immemorial by the residents of Joykristpore and also other villages.

The entry in the settlement khatian, Ex. 1 (a) is also significant. The disputed plots have been recorded in the khatian as 'Path sadha-raner vyavaharya' i.e., pathway used by people in general. The people in general do not connote the inhabitants of any particular village but they signify all members of the public irrespective of any class or community or any place of residence. So, it is clear that the plaintiffs claim the pathways as public pathways used by the people in general irrespective of their residence in any particular village. Such a claim could have its foundation in some lost dedication or grant which was pleaded in this case in the plaint. Both the courts below have concurrently found that these pathways are being used by members of the public from time immemorial and the defendants wrongfully converted them into agricultural plots since their predecessor-in-in-terest obtained settlement from the landlord in 1350. This finding is based upon the entry in the settlement khatian and also upon oral evidence, and, in my opinion, it should not be disturbed in second appeal. The appellants did not succeed in rebutting the presumption raised by the entry in the record-of-rights.

6. In the circumstances I affirm the findings of the courts below that the plaintiffs have succeeded in establishing their right over the disputed pathways which presumably had its origin in some dedication or grant in the remote past. Even if it be assumed that the plaintiffs could have claimed these pathways only by customary right, I do not think such a claim is in any way inconsistent with the averments made in the plaint. All the essential requisites necessary for establishing a valid custom were pleaded in the plaint in this case. The plaintiffs asserted user of the pathways as a matter of right from time immemorial and without any interruption. The plots over which the pathways were claimed were also specifically described by their settlement numbers. The nature of the user was also definitely stated in the plaint. There is nothing to show that the user which was claimed in this case was in any way unreasonable or opposed to public policy. In the circumstances although the plaint did not expressly mention that the pathways were claimed by virtue of customary right, the lower appellate court was fully justified in holding that such right had been established by evidence.

7. The second argument advanced on behalf of the appellants was that the trial court was not justified in admitting Ex. 3 series in evidence for the purpose of holding that the disputed plots have been used as pathways from a very long time. On an examination of these documents I find that in some of the plots covered by these documents the disputed lands have been described as pathways. It was contended on behalf of the appellants that such recitals in boundaries, although made by persons who are now dead, are not admissible in evidence. Both the courts below have relied upon the case of -- 'Busoid v. Newaj Ahmed Khan' : AIR1929Cal533 (misquoted in both the lower courts as 33 Cal WN 442), for the purpose of holding that the recitals in the boundaries of plots covered, by the documents marked Ex. 3 series are admissible in evidence under Section 32(4) of the Indian Evidence Act. In my judgment the courts below were wrong in holding that such recitals are admissible in evidence, and the facts of the case reported in -- : AIR1929Cal533 have no application to the facts of the present case. In that case the statements of earlier documents which were found to be admissible were contained in the bodies of the deeds and not in the boundaries of any plots covered by the deeds.

The material portion of Section 32(4) of the Indian Evidence Act runs to the effect' that when the statement of a deceased person gives his opinion as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, the would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen such statement would be admissible in evidence. It cannot certainly be contended that the recitals in the boundaries of plots covered by any document constitute the opinion of the executant of the deed on any matter whatsoever. In the circumstances I am of opinion that the evidence based upon the documents marked Ex. 3 series in the trial court must be excluded out of our consideration. But even after such exclusion there remains a reliable volume of evidence in plaintiffs' favour in support of their claim of path right over the disputed plots. I may particularly mention the entry in the settlement khatian. In the circumstances I am of opinion that the courts below have rightly decreed the suit in favour of the plaintiffs.

8. The last argument advanced on behalf of the appellants was that the description of the lands over which the plaintiffs' right of way has been declared by the courts below is vague and indefinite and no effective decree can be passed with regard to such plots. On an examination of the 'disputed plots as described in the schedule of the plaint, I find that this contention is without any substance because the plaintiffs have specifically claimed the right of way over one C. S. plot in its entirety and over portions of two other C. S. plots. The portions of the last two plots which are said to have been obstructed by the appellants have also been described with precision and exactitude. I therefore hold that there is no vagueness or indefiniteness in the description of the pathways which are the subject-matter of the suit and the objection taken on this score must fail.

9. In the result the appeal fails and is dismissed with costs.


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