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Ram Kumar Mazumdar and on His Death His Heir and Legal Representative Sital Chandra Mazumdar and Ram Dudal (Dulal in Vakalatnamah) Mozumdar Vs. Mohim Chandra Dutta and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in65Ind.Cas.579
AppellantRam Kumar Mazumdar and on His Death His Heir and Legal Representative Sital Chandra Mazumdar and Ram
RespondentMohim Chandra Dutta and ors.
Excerpt:
easement - right of way--servient tenement not to be saddled with heavier burden than proved--mode of user. - .....to the defendants. from the pleadings and findings of the courts below we take it that the path claimed was a private path. both the courts below have found in favour of the plaintiff, but they have differed as to the extent of the user. the court of first instance gives the plaintiff a general right of way including the right of way for carriages, carts palanquins, processions, elephants, corpses, etc. on appeal by the defendants the lower appellate court has held that the plaintiff claiming a right of way over another's property he should not be allowed a higher right than what he has been able to prove. on the evidence he has found that the plaintiff has succeeded in proving the user of the pathway for men, carts and palanquins. the said court has accordingly restricted the.....
Judgment:

1. This appeal arises out of a suit brought by the plaintiff appellant for a declaration of right of way over a strip of land belonging to the defendants. From the pleadings and findings of the Courts below we take it that the path claimed was a private path. Both the Courts below have found in favour of the plaintiff, but they have differed as to the extent of the user. The Court of first instance gives the plaintiff a general right of way including the right of way for carriages, carts palanquins, processions, elephants, corpses, etc. On appeal by the defendants the lower Appellate Court has held that the plaintiff claiming a right of way over another's property he should not be allowed a higher right than what he has been able to prove. On the evidence he has found that the plaintiff has succeeded in proving the user of the pathway for men, carts and palanquins. The said Court has accordingly restricted the use of the path to these three modes of user and disallowed the general right of way over it.

2. The plaintiff appeals to this Court and contends that he ought to have had a declaration that he is entitled to have a general right of way for carriages, processions, elephants, etc.

3. We think the learned Subordinate Judge is right in the view of the law he has taken, It being as easement claimed over another a property the servient tenement should not be saddled with a heavier burden than what the plaintiff has succeeded in proving. We may refer for the principle of law governing this sage to Gale on Easements, 9th Edition, page, 316, and Goddard on the Law of Easements page 377. We may also refer to Section 28 of the Indian Easements Act which, though not applicable to this case, codifies this well known principle of law. But when a particular mode of user is not heavier than the mode of user proved the plaintiff may be allowed to use it in that particular way, e g., the user of a way for horses may include the right to lead smaller animals as well but not larger animals or loads. The learned Subordinate Judge has restricted the user of this path to the passage of men, carts and palanquins and has disallowed the plaintiff's claim to take cattle, professions and corpses, By allowing the plaintiff to take his carts we understand he means carts drawn by ordinary animals. But we are not inclined to agree with the lower Appellate Court; as to the restriction on the user by preventing corpse to be carried through it. We do not think it adds any heavier burden to the user. With this modification, namely, that the plaintiff will have a right of user for the passage of men, carts, palanquins and corpses, we disallow the plaintiff's claim, affirm the decision of the lower Appellate Court and dismiss the appeal. As the appellant has failed in greater part of his claim he must pay the respondent's costs of this appeal.


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