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Dwarka Nath Sen and ors. Vs. Tara Prassanno Sen and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1923Cal356,76Ind.Cas.328
AppellantDwarka Nath Sen and ors.
RespondentTara Prassanno Sen and ors.
Cases ReferredRajrup Koer v. Abul Hossein
limitation act (ix of 1908), schedule i, article 144, applicability, of - co-shams--suit for removal of obstruction, to common passage. - .....october 1-912.3. the only question with which we are concerned is the question of limitation the learned munsif had held that the case was governed by article 144 of 1316 schedule to the limitation act. the learned district judge was of opinion that there was 'no special provision in the schedule to the limitation act for suits such as the present.' he concluded, therefore, that article 120 would apply, that accordingly the period of limitation was six years and that the suit was out of time. on that ground he reversed the munsif's decree in favour of the plaintiff, and dismissed the suit.4. now, i agree with the learned judge when he says:--'the suit cannot be treated either as one relating to an easement of way; easement presupposes the existence of dominant and servient tenements.....

Thomas Richardson, J.

1. This appeal arises out of a suit brought by the plaintiff, the appellant before us, to establish his right of way over certain land and to obtain the removal of certain alleged obstructions to that way for which the principal defendants are said to be responsible. The parties are co-sharers of the homestead in respect of which the question arises. The plaintiff's house is on the north of the inner courtyard. The house of Tara Prasanno Sen, the original defendant No. 1, is on the east and the house of Surendra Chandra Sen, the original defendant No. 2, is on the south. The plaintiff's case is, that from this inner courtyard two ways or passages lead in an easterly or southeasterly direction towards he plaintiff's Bahirbari and the public road. The facts are stated in the judgment of the learned District Judge as follows:--'In the year 1303 the appellant's father (that is, the father of the defendant No. 1) commenced the erection of the mud-walled house marked I in the sketch attached to the plaint. Then the trouble began. The present plaintiff's brothers sued the appellant's father by a suit instituted, in the year 1898, alleging that in the crection of this house, the latter had encroached on. two paths leading from the inner courtyard of the homestead lying west of this house to the Bahirbari of the plaintiff. One of these paths is the one to which the present Appeal No. 95 relates and. passes by the south of the house marked 1 (that is, the house of the defendant No. 1). The other, according to the plaint, in the suit of 1898, was alleged to have been built over in the erection of house No. 1. The then plaintiffs prayed for a declaration of their right to use these paths and for an order for the removal of the obstructions. The Munsif who tried the suit found that the paths had existed as alleged and he ordered the removal of the northern wall of the mud-walled houses. The matter was taken up on appeal and the Subordinate Judge who heard the appeal found that as a space practically three cubits wide lay to the north of house No. 1 and would; meet the needs of the then plaintiffs, the under directing removal of the northern wall was not necessary. The execution of that decree was contested and the matter went up to the High Court on appeal. In the meanwhile, other litigation bad commenced between the parties, and at the instance of friends the disputes between the persons interested in the homestead were amicably settled. A deed embodying the terms of the settlement was executed on the 7th Kartic 1309 and was registered and, in consequence, the appeal that was pending in the High Court was withdrawn, Further on, the learned District Judge continues:--'The southern path is said to have been encroached on in the year 1312 by the erection of a Verandah to the west and south of house No. 1 by the appellant and by the erection of a Verandah to the east of house No. 3 (that is the bouse of the original defendant No. 2) by defendants Nos. 2 to 5. These latter defendants have not contested the suit and have not contested the decree. The learned [Munsif has ordered the removal of those portions of the three Verandahs above referred to which obstruct the southern path.'

2. Then the learned District Judge, as I understand his judgment, goes on to accept and adopt the finding of the Munsif that the obstruction of the southern path dates from Baisakh 1312, or April 1905, which would be more than six years but less than 12 years before the present suit was instituted on the 4th October 1-912.

3. The only question with which we are concerned is the question of limitation The learned Munsif had held that the case was governed by Article 144 of 1316 Schedule to the Limitation Act. The learned District Judge was of opinion that there was 'no special provision in the Schedule to the Limitation Act for suits such as the present.' He concluded, therefore, that Article 120 would apply, that accordingly the period of limitation was six years and that the suit was out of time. On that ground he reversed the Munsif's decree in favour of the plaintiff, and dismissed the suit.

4. Now, I agree with the learned Judge when he says:--'The suit cannot be treated either as one relating to an easement of way; easement presupposes the existence of dominant and servient tenements owned by different persons, here the ownership is joint and the plaintiffs cannot claim an easement over their own land.' I agree so far But when the learned Judge observes: 'The question whether any co-sharer has appropriated to his exclusive use any portion of the common property in excess of his share is not one which can be considered in a suit such as the present, and no materials hive been placed before the Court from which it may be concluded that the appellant is in enjoyment of more than his share of the homestead,' I confess, I cannot follow his reasoning.

5. The learned Judge does not, as I under stand, differ from the view of the reamed Munsif that the southern path hart long existed as a way reserved by the co-sharers for their common use and convenience. The existence of this way and of the plaintiff's right as co-sharer to the use of it is evidenced, and confirmed by the agreement of 1309 or 1902. Both Courts again are in agreement that this right belonging to the plaintiff has been infringed. That being so, what is the nature of the wrong of which the plaintiff complained and what is his remedy

6. The wrong, as it seems to me, is a continuing wrong within the meaning of Section 23 of the Limitation Act. The principle, therefore, is applicable on which the Privy Council acted in Rajrup Koer v. Abul Hossein 6 C. 394 :7 I.A. 240 : 7 C.L.R. 529 : 4 Shom L.R. 7 : 4 Sar. P.C.J. 199 : 3 Suth. P.C.J. 816 : 4 Ind. Jur. 530 : 3 Ind. Dec. (N.S.) 257 (P.C.). The obstructions and continuing nuisances as to which the cause of action accrued. It is immaterial that the parties are co-owners. The plaintiff's rights have been invaded and the fact that the parties are co-owners does not alter the nature of the wrong done by the defendants Prima facie, the obstructions continuing, the plaintiff's suit was in time, and if limitation be pleaded, resort must be had to Article 144. Under that Article the burden is on the defendants to prove facts which would entitle them to say that the plaintiff had lost his rights by reason of something in the nature of adverse possession for the prescribes period. On the facts found by both Courts no such defence is available.

7. It has been argued by Dr. Kanjilal on. the side of the principal defandant that this is a mere suit for a declaration. Obviously, this is a suit for something much move than a declaration, it is a suit for the removal of the actual existing obstructions on land which by long usage and by agreement between the patties is reserved for use as a common passage.

8. In my opinion the view taken by the learned Munsif in the Trial Court that the suit is in time is right and this appeal must succeed.

9 It was suggested that the learned District Judge having dealt with the one question of limitation, if he is wrong on that question, the suit ought to be remanded in order that he may decide any other questions which arise. In my opinion, it will serve no useful purpose to remand the case. So far as the 'really' material facts are concerned, both Courts, as I understand the position, are in agreement. There are distinct findings in the very careful judgment of the learned Munsif and, so far as the learned Judge has dealt with the facts, he has concurred with the Munsif. If there be any relevant fact on which the learned Judge has not found and on which it is necessary that a finding should be arrived at, I should at least approach the question with a strong inclination to support the finding of the Munsif. The only question, however, to which our attention has been specially directed is that involved in the first part of issue No. 16 of the issues framed by the Munsif, as follows:--'Was there any agreement for carrying dead bodies, palanquins and processions?' Now, this is a question relating to the mode in which, or the purposes for which, the way may be used, and such a question does not properly arise in the present suit. The answer depends on the agreement of 1902 read with the decree in the suit in which the agreement came to be made.

10. The result is that, in my opinion, the appeal should succeed. The decree of the District Judge is set aside and that of the Munsif restored. The appellant is entitled to his costs of this appeal and of the lower Appellate Court.

11. The two cross-objections are not pressed and are dismissed without costs.

12. If the state of things which existed at the date of the decree of the Trial Court has since been altered, that is a matter which we must leave to be dealt with in the Execution Court, or by such other proceedings in the suit as may be appropriate.

Suhrawardy, J.

13. I agree.

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