Bhagwan Dutt Kamat vs Asharfi Lal Mahtha

Kulwant Sahay, J.—The only question raised in this appeal is one of limitation. The suit was for a declaration that certain plots of land were the gairmazruaam lands to which the plaintiffs and the public had a right. Two of these plots were ''rastas'' or pathways, while the remaining two plots formed the bhinds of the pokhar or the tank. The obstruction was admitted; but it was alleged that the obstruction had taken place much more than 12 years before the date of the suit. The Munsif decreed the suit so far as regards the bhind was concerned; but as regards the two plots constituting the rastas, he dismissed the suit on a finding that the obstruction had taken place more than 12 years be. fore the suit. The learned Subordinate Judge on appeal has held that Section 23. Lim. Act, applies and the wrong was a continuing wrong and therefore there was no question of limitation.

It is contended that the dispossession being complete more than 12 years ago, Section 23, Lim. Act, had no application; and reliance is placed upon a decision of the Madras High Court in The Municipal Commissioner, Madras v. Sarangapani Mudaliar (1896) 19 Mad 154. There the obstruction was caused to a public highway which had been encroached upon by the defendant who had a house adjoining the road. It was held that the defendant had been in adverse possession and had acquired a right and the plaintiff''s action was barred by limitation.

The question however was considered by the Calcutta High Court in Nazimullah v. Wazidulla AIR 1916 Cal 733, where it was held that a wrongful interference with a right of way constitutes a nuisance and that it is a continuing wrong u/s 23, Lim. Act; and reliance was placed upon the decision of their Lordships of the Judicial Committee in Rajrup Koer v. Abdul Hossein (1881) 6 Cal 394. The obstruction there was to a water course; but it was pointed out by Mookerjee, J., that there was no distinction between the obstruction to a watercourse and an obstruction to a pathway.

In a very recent decision of the Judicial Committee of the Privy Council in Hukum Chand v. Maharaj Bahadur Singh (4), the decision in Rajrup Koer''s case (1881) 6 Cal 394 was applied to certain acts on the part of the Swetambari Jains interfering with the Digambaris'' right of worship on the Parasnath hill, and it was held that it was a continuing wrong as to which u/s 23, Lim. Act, a fresh period begins to run at every moment on the day on which the wrong continues. In our Court in the case of Jagroshan Bharthi Vs. Madan Pande, , the opinion was expressed that an obstruction to the public path is a nuisance in itself and that no length of user can justify an encroachment upon the public way.

No doubt this observation was made in connexion with the proceeding u/s 133, Criminal P.C.; but the view expressed there, that no length of user can justify the encroachment, brings the case within Section 23 of the Act. In this view of the case I am of opinion that the decision of the learned Subordinate Judge was correct. This appeal is dismissed with costs. The appellants asks for leave to appeal under the Letters Patent. Leave is granted.