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AptabuddIn Khan and anr. Vs. Johar Ali Kazi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal201,155Ind.Cas.75
AppellantAptabuddIn Khan and anr.
RespondentJohar Ali Kazi and ors.
Cases ReferredNazem v. Wazedulla
Excerpt:
- .....of a village called piparia, for a declaration that a certain strip of land forms part of the village gopat, for an order on the defendants to fill up a tank that they have excavated in such a way as to block the gopat, and for certain other reliefs. the strip of land in suit lies to the west and north of the defendants charabari, and according to the defendants' case, it forms part of their charabari, while according to the plaintiff's it is the zemindar's khas land and forms part of a village gopat that has existed and has been used by them from time immemorial.2. it is undisputed that a village gopat runs from south to north through the part of the village to the south of the defendants' charabari, and also that a similar gopat runs from south to north through the part of the.....
Judgment:

Patterson, J.

1. This is an appeal by two of the defendants, and arises out of a suit brought by the plaintiffs on their own behalf and on behalf of the other inhabitants of a village called Piparia, for a declaration that a certain strip of land forms part of the village gopat, for an order on the defendants to fill up a tank that they have excavated in such a way as to block the gopat, and for certain other reliefs. The strip of land in suit lies to the west and north of the defendants charabari, and according to the defendants' case, it forms part of their charabari, while according to the plaintiff's it is the zemindar's khas land and forms part of a village gopat that has existed and has been used by them from time immemorial.

2. It is undisputed that a village gopat runs from south to north through the part of the village to the south of the defendants' charabari, and also that a similar gopat runs from south to north through the part of the village to the north thereof. The plaintiffs' contention was and is that these two gopats were really one and the same gopat, and that the land in suit was the portion of the gopat connecting the northern and southern portions. The defendants' case was, inter alia, that the people of the village had at most a customary right to pass across the defendants' charabari, but not by any defined path, from its south-western corner where the southern gopat ended, to its north-eastern corner where the northern gopat began and that the tank had been dug and the path diverted with the consent of all the villagers concerned, including the plaintiffs themselves.

3. The trial Court dismissed the suit, but the lower appellate Court decreed it, and one of the principal grounds of appeal that has been urged before this. Court is that the lower appellate Court did not reverse some of the findings on the strength of which the trial Court had dismissed the suit, and in some cases did not even refer to the points to which those findings related. There is in my opinion, no substance in this contention, for the findings of the lower appellate Court appear to me to be conclusive, and are such as to render the consideration of those of the trial Court's findings to which no reference has been made quite necessary. The lower appellate Court has found, on a consideration of all the evidence that has been adduced on both sides, including the Settlement Records and the records of the Butwara proceedings: (1) That the land in suit is a village gopat and not part of the defendants' raiyati. (2) That for a long time-(by which is evidently meant from time immemorial,' to use the legal phrase),-there had been a village gopat over the land in suit connecting the northern and the southern gopats. (3) That the defendants gradually encroached on and finally appropriated the land in suit; and (4) that the villagers never gave their consent to the old gopat over the land in suit being closed, and a new path opened up. These are findings of fact which cannot be questioned on second appeal and they are, as has already been stated, conclusive.

4. It has been contended that the lower appellate Court ought to have considered the evidence with regard to an earlier diversion of the path that is said to have taken place some 14 or 15 years ago, and especially with reference to the question of limitation; but it has been held that limitation does not apply in a case of this sort, obstruction to a right of way being a 'continuing nuisance': Nazem v. Wazedulla 1916 Cal 733. It has further been contended that customary rights, such as the right now under consideration, must be exercised in a reasonable manner, and attention has been drawn to the finding of the trial Court to the effect that the new path provided by the defendants is quite convenient, and is in fact being used by the majority of the villagers without complaint. This contention would have bad great force, if the lower appellate Court had merely found that the villagers had some sort of right of way over the defendants' land, but it becomes entirely irrelevant in view of the finding of that Court to the effect that the land in suit is a village gopat that has existed from time immemorial and that it does not form part of the defendants' raiyati at all.

5. As the matter now stands, it is a question of legal rights, and there is therefore no scope for the application of equitable principles. It has been found that the villagers have certain legal rights in the land in suit, and that they have never surrendered those rights, and this being so, it is the duty of the Courts to defend and enforce those rights. The result is that the appeal is dismissed with costs to the appearing respondents, and the judgment and decree of the lower appellate Court are affirmed. Leave to appeal under Section 15, Letters Patent, is refused.


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