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Hari Mohun Thakur and anr. Vs. Kissen Sundari and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1885)ILR11Cal52
AppellantHari Mohun Thakur and anr.
RespondentKissen Sundari and anr.
Excerpt:
burden of proof - easement--act x of 1882, section 147. - .....was between the proprietors of two neighbouring properties. in the proceedings before the deputy magistrate, the parties of the first part were the proprietors or persons connected with the proprietors of village chunderpore. the parties on the other side were the proprietors or people connected with the proprietors of village amkhuria. now, it appears that there is a reservoir of some considerable size, which stands mainly within the limits of chunderpore, but partly within the limits of amkhuria, and partly within the precincts of another property belonging to persons different both from the first and second party. the reservoir is secured by a bund running along its north side with a spur at the western end, and a spur at the eastern end, both running southerly; the western.....
Judgment:

Wilson, J.

1. It appears to us that the order of the Deputy Magistrate in this case cannot be sustained. The controversy was between the proprietors of two neighbouring properties. In the proceedings before the Deputy Magistrate, the parties of the first part were the proprietors or persons connected with the proprietors of village Chunderpore. The parties on the other side were the proprietors or people connected with the proprietors of village Amkhuria. Now, it appears that there is a reservoir of some considerable size, which stands mainly within the limits of Chunderpore, but partly within the limits of Amkhuria, and partly within the precincts of another property belonging to persons different both from the first and second party. The reservoir is secured by a bund running along its north side with a spur at the western end, and a spur at the eastern end, both running southerly; the western spur and the adjacent portion of the reservoir being within the limits of Amkhuria. It appears that in the present year the Amkhuria people set about cutting a passage or ditch through the western spur, in order to draw the water of the reservoir to their village Amkhuria, and this was objected to by the Chunderpore people, and there being information that a breach of the peace was imminent, proceedings were taken under Section 147. Now, it is necessary, in order to appreciate these proceedings, to see exactly the position in which the parties stand. The Amkhuria people stand simply upon their ordinary proprietary right as owners of the lands of Amkhuria. They claim a right which prima facie all proprietors are entitled to exercise, viz., to cut a bund on their own land, and use the water standing on their own land. On the other hand, the Chunderpore people claim a right, which they may very well have, but which it lay upon them to establish, viz., to restrain the Amkhuria people from exercising ordinary proprietary rights over their own land. That is a right of the nature of an easement different from ordinary rights of owners of land. And in order to entitle them to ask for an order under Section 147, the Chunderpore people had to satisfy the Magistrate that the alleged right existed; that is to say, that the Chunderpore people had the right of restraining the Amkhuria people from doing as they would on their own land. The Deputy Magistrate, before whom the matter came, appears to us to have misunderstood the question which he had to deal with. He assumes that the question before him was not as to the easement alleged by the Chunderpore people, but the right of the Amkhuria people to cut their own bund and draw water standing on their own land. The finding which he arrives at is this: 'The Court finds that the second party did not exercise any right in drawing water from the Banhara bund by cutting its western path for several years, and that they took no water from it by opening kunwas during the season next preceding such institution, and therefore the Court directs that they must not do so now, and that the western bottom be not cut till they obtain the decision of a competent Civil Court adjudging them to be entitled to do such thing.' The Deputy Magistrate appears to us to have wholly misunderstood the question before him. He threw the burden on the wrong side, and his findings are insufficient to support the order that he has made. It is not necessary for us to say anything about the view taken by the Deputy Magistrate of the proviso to Section 147. Whether that proviso really has any application to a case of this kind is a question of considerable difficulty, and one as to which we are not disposed to express any opinion at present. It is sufficient to say that in our judgment the order made by the Deputy Magistrate is not supported by any finding which he has arrived at, and that this order must therefore be set aside. Any costs that may have been paid under the orders of the Court will be refunded.


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