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Gopinath Jew Thakur and ors. Vs. Radha Kanta Thakurji and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.108
AppellantGopinath Jew Thakur and ors.
RespondentRadha Kanta Thakurji and ors.
Excerpt:
easement - holding kirtan on land--custom--right of way--carrying idols. - .....track marked out, which the plaintiffs must follow for the purpose of carrying idols. that is in favour of the defendants. i think the court below was right and we cannot interfere. the result is that so much of the decree of the court below as deals with the question of easement, that is to say, the right to hold the musical entertainments must be reversed, but it stands as to the right of way. as each party has succeeded partially in this appeal, there will be no costs.brett, j.3. i agree.
Judgment:

Francis Maclean, C.J.

1. As regards the first appeal, upon the question of adverse possession, we do not think there is sufficient material upon the findings of fact to justify the conclusion that there was any possession so adverse to the plaintiffs as to prevent them from recovering the strip of land in question. That appeal must, therefore, be dismissed with costs.

2. As regards the second appeal (No. 2483), two questions arise:First, whether there was an easement acquired by the plaintiffs in this suit to hold something in the nature of a musical festival once or twice a year on the plot of ground which is the subject of dispute; and, secondly, whether the plaintiffs acquired a right of way to carry their idols over this piece of land. As regards the first point, I think no such easement can properly exist--it cannot exist as an easement. There may have been a custom entitling them to hold a 'Kirtan,' a sort of religious concert, on the piece of land. But that is not the case set up. We do not think there can properly he what is known as an easement, such as the plaintiffs claim. This appeal, therefore, succeeds on this point. As regards the other question, the Court below seems to have thought that it was established that the plaintiffs had been exercising a right of way over the plot of ground for the purpose of carrying idols one or two days a year. But there does not seem to be any particular track:the people carrying the idols sometimes along one track and sometimes another: but always across this strip of ground. The lower Court has given the defendants an opportunity of showing in execution proceedings that there is a definite track or to have a definite track marked out, which the plaintiffs must follow for the purpose of carrying idols. That is in favour of the defendants. I think the Court below was right and we cannot interfere. The result is that so much of the decree of the Court below as deals with the question of easement, that is to say, the right to hold the musical entertainments must be reversed, but it stands as to the right of way. As each party has succeeded partially in this appeal, there will be no costs.

Brett, J.

3. I agree.


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