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Luchmessur Singh Vs. Leelanund Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1879)ILR4Cal599
AppellantLuchmessur Singh
RespondentLeelanund Singh
Cases ReferredKishoree Lall Roy v. Gokool Monee Chowdhrain
Excerpt:
ferry rights, infringement of - right to restrain party starting a second ferry. - .....seems to us too late to contend that in the courts of this country a zemindar cannot have such a right of ferry arising out of a grant of settlement, as that the infringement of that right by reason of the establishment of another ferry at a short distance from it will not give a right of action. such cases constantly occur--see kishoree lall roy v. gokool monee chowdhrain (16 w.r., 281). the plaintiff's ferry, as i have already stated, is substantially the same ferry as he had years ago. the defendant in his written statement says that he maintained boats for the conveyance of his own servants and ryots, but the evidence clearly shows, we think, that these boats were also permitted to transport passengers of other kinds, and more especially passengers of the poorest sort. that the.....
Judgment:

Jackson, J.

1. In the Court of the Subordinate Judge a question of fact was raised--viz., whether the ferry, as now existing, touched on the eastern side upon the defendant's village or plaintiff's. Upon the evidence, and after personal inspection, the Subordinate Judge was of opinion that the land at that particular spot belonged to the plaintiff. He observed, that although the defendant had called witnesses to show that the spot of land in question belonged to him, no document whatever was produced in support of what they said, and, in short, he did not believe those witnesses. Far from that being the case, it seems that a good many documents, and some of them of an altogether unimpeachable kind, were produced by the defendant, and it appears that there was no particular reason why the witnesses should be disbelieved. But in our opinion that point is not really material, if we assume that the point of debarcation at the ferry on it eastern side has been shifted from within the plaintiff's mouza to a point within that of the defendant. In the first place, if it has happened, it happened many years ago and has been without objection from the defendant. There can he no doubt that the ferry has been carried on in the same manner as it is now, for nearly, if not quite, twenty years; and the ferry in our opinion is therefore substantially the same ferry that the plaintiff has owned ever since 1846, and it seems to us too late to contend that in the Courts of this country a zemindar cannot have such a right of ferry arising out of a grant of settlement, as that the infringement of that right by reason of the establishment of another ferry at a short distance from it will not give a right of action. Such cases constantly occur--see Kishoree Lall Roy v. Gokool Monee Chowdhrain (16 W.R., 281). The plaintiff's ferry, as I have already stated, is substantially the same ferry as he had years ago. The defendant in his written statement says that he maintained boats for the conveyance of his own servants and ryots, but the evidence clearly shows, we think, that these boats were also permitted to transport passengers of other kinds, and more especially passengers of the poorest sort. That the defendant took no tolls for the conveyance of such passengers makes no difference, as although the defendant does not gain, the plaintiff loses, for if those persons were not gratuitously taken by the defendant, they would have to pay to the plaintiff, and so far the plaintiff would suffer damage. Mr. Advocate-General, who appears for the plaintiff, does not now contend that the defendant would not be at liberty to keep his own boats for the purpose of conveying his own servants and other persons coming upon his business, and if the defendant proved that the service of the boats which he maintained was limited to that purpose, the plaintiff' would have no ground of action. But the fact is otherwise. One cannot help seeing that assertions of his right to carry passengers have been somewhat vaguely, but repeatedly, set up within the last twenty years. It is quite possible that if the plaintiff neglected to notice such infractions of his rights, those might assume very serious proportions. We think, therefore, although not for the reasons stated by the Subordinate Judge, that the plaintiff's suit was well founded, and that he was entitled to a decree and to an injunction restraining the defendant from carrying over the ferry in that place in his boats, whether for hire or otherwise, persons other than his own servants or persons lawfully engaged upon his business or going to his premises. We think the judgment of the Court below should be accordingly modified, and a decree drawn in the terms stated above. The plaintiff will be entitled to his costs of this appeal.


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