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Kali Charan Naskar Vs. Ram Kumar Sardar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.67
AppellantKali Charan Naskar
RespondentRam Kumar Sardar and ors.
Cases ReferredChuni Lall v. Ramkishen Sahu
Excerpt:
public highway - village pathway--suit to vindicate right to village pathway, whether maintainable in absence of special damage--civil procedure code (act xiv of 1882), section 30. - .....this decree, nowhere is it suggested that the appropriate description was not a village road but a public highway. all that was contended was that there was no pathway at all. the case came before the lower appellate court, with the result that the decision of the court of first instance was confirmed and the appeal dismissed with costs. then the case came on second appeal before mr. justice coxe, and it was contended before him that the suit must fail because the subject-matter of the litigation was a public highway and, therefore, a suit could not be brought under the terms of section 30. the learned judge, though very reluctantly, yielded to the argument. had the judgment of mr. justice wilson in chuni lall v. ramkishen sahu 15 c. 460 been brought to his notice, he would have been.....
Judgment:

Lawrence Jenkins, C.J.

1. This is a suit brought by the plaintiff under Section 30 of the Code of Civil Procedure of 1882, on behalf of himself and his co-villagers to vindicate their right to a village pathway, and to obtain appropriate relief. That is how the case was specifically framed by the pleadings. Before the Munsif, evidence was adduced with the result that the Munsif passed a decree in these terras: 'The suit is decreed with costs; it is declared that the land described in the map filed along with the plaint is a village road.' The learned Munsif then proceeded to give the appropriate relief. In the grounds of appeal preferred from this decree, nowhere is it suggested that the appropriate description was not a village road but a public highway. All that was contended was that there was no pathway at all. The case came before the lower Appellate Court, with the result that the decision of the Court of first instance was confirmed and the appeal dismissed with costs. Then the case came on second appeal before Mr. Justice Coxe, and it was contended before him that the suit must fail because the subject-matter of the litigation was a public highway and, therefore, a suit could not be brought under the terms of Section 30. The learned Judge, though very reluctantly, yielded to the argument. Had the judgment of Mr. Justice Wilson in Chuni Lall v. Ramkishen Sahu 15 C. 460 been brought to his notice, he would have been able to give effect to what evidently was his view as to the justice of the case. But that case apparently was not cited to him, nor did the argument bring to his notice the distinction between a public highway and a road over which a section of the public, as for instance, the inhabitants of a particular locality, might have a right of way. To my mind it is clear, notwithstanding stray expressions to be found here and there in the judgment of the lower Appellate Court, that the ultimate decision was, as the decree itself declared, that the particular pathway was a village road. That conclusion completely meets the difficulties raised by the defendants and the result is that, in my opinion, the judgment and decree of Mr. Justice Coxe must be set aside, and the decree of the lower Appellate Court confirmed. The respondents must pay the costs in the High Court and in the lower Courts.

N. Chatterjea, J.

2. I agree.


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