Ganesh Lall vs Bisesar Pandey

Kulwant Sahay, J.—This is an appeal on behalf of the defendant and arises out of a Suit brought by the plaintiffs respondents for a declaration that the defendant has no right to open doors on the south of his house marked F in the sketch map filed with the plaint on a lane marked E in the map, on an allegation that the said lane was the private property of the plaintiffs and of the owners of the houses marked B and C in the sketch map.

The defendant denied the title of the plaintiffs to the lane and asserted that it was a public lane to which the plaintiffs had ho exclusive title and that the defendant Had as much right to the lane as the plaintiffs had, and that he had the right to open the doors at the points marked G and H in the sketch map towards south of his opening on the lane

The learned Munsif found that the plaintiffs had got no right to the soil of the lane and that they had only a right of way over it. He was of opinion that the lane was not a public lane as alleged by the defendant but that it was a blind lane terminating at the southern extremity of the house marked A in the map. He held that the lane was not a private lane of the plaintiffs only but that the defendant had also the right to use it. He accordingly refused to give a decree to the plaintiffs restraining the defendant, from opening his doors at the points G and H and dismissed the suit.

On appeal the learned Subordinate Judge has decreed the suit and has made a declaration that the defendant has no right to open the doors at the points G and H or to open any other door into the lane marked E in the map which he declared to be the private lane of the owners pf the houses A B and C in the sketch map filed with the plaint.

Against this decree the defendant has come up in second appeal to this Court. It is contended on his behalf that the learned Subordinate Judge has made a mistake of record in considering the documentary evidence in the case and has also put a wrong construction upon Ex. 5 which is the title-deed of the plaintiffs.

On referring to the sketch map filed with the plaint, it appears that the plaintiffs'' house marked A lies to the east of the defendant''s house marked F. South of the plaintiffs'' house is the house of Mahadeo Pande marked B and to the south of Mahadeo Pande''s house is the house of Basant Misser marked C. Between the house of Mahadeo Pande and the defendant''s house there is a lane which is said to be a continuation of the disputed lane marked E lying to the south of the defendant''s house marked F.

The learned Subordinate Judge agrees with the Munsifs that the oral evidence, with regard to the ownership of the lane is not satisfactory; but he was of opinion that the documentary evidence adduced by the plaintiffs was distinctly in favour of the plaintiffs and established their title to the lane. The first document that the learned Subordinate Judge considers is Ex. 5 a kabala dated the 30th August, 1872. This is a title deed of the plaintiffs and the construction of this document is a point of law which can be taken in second appeal. By this kabala (Ex. 5) Mahadeo Pande, the owner of the house marked B, sold a portion of his house to the ancestor of the plaintiffs. That portion has now been amalgamated with the plaintiffs'' old house, and the house marked A in the sketch is the old house of the plaintiffs amalgamated with a portion of the house B purchased under Ex. 5. The learned Subordinate Judge refers to the eastern boundary of the, portion sold by Ex. 5 which was stated to be the house of one Doman and from this he inferred that there was no lane to the east of the plaintiffs'' house as alleged by the defendant. He then refers to a description in the kabala, Ex. 5, to the effect that the main entrance of the portion of the house sold lay to the south and he says that this is the entrance as shown in the sketch map as being the entrance of the house A. This, however does not show the title of the plaintiffs to the lane in dispute and there is no question of mis-construction of this document and the argument of the learned Counsel for the appellant that the Subordinate Judge has misconstrued the title-deed (Ex. 5) must fail.

The next document referred to by the learned Subordinate Judge is a khasra marked Ex. 15 and a map marked Ex. 14. This khasra and the map were prepared in the course of a partition suit and it is not a khasra made at a public survey as stated by the learned Subordinate Judge. Item No. 211 in this khasra is the house marked 0 in the sketch map. This khasra shows that the house marked C then belonged to one Musammat Pano Kuer, widow of Dwarka Pande. There are two entries in, Khasra No. 211. The first entry is that of the house now marked C as the house of Musammat Pano Kuer of which the length, breadth and area are given in the columns provided therefor. The next entry runs thus: "Goshagali for egress and ingress westward up to the road" and the length, breadth and area of this Goshagali are also given separately from those of the house. The learned Sub-ordinate Judge on a reference to the map finds that this Goshagali is the lane marked E in the sketch map which is the subject of dispute in the present case. The learned Subordinate Judge says that these two documents (Exs. 14 and 15) show that the title to the lane was with the widow of Dwarka Pande who was an agnate of the plaintiffs. The learned Subordinate Judge says that this plot No. 211 is entered in the khasra under the column headed " Jagir Bishanprit, etc." In this he is clearly wrong It is not shown in the khasra under the column headed "Jagir Bishanprit, etc." In fact this particular column is left blank against the Khasra No. 211. It is contended by Mr. Minuk that this is a mistake of record and that the finding of the Subordinate Judge to the effect that the lane in dispute is proved to be the Jagir Bishanprit of Dwarka. Pande is based on the erroneous impression that it is entered in the column of "Jagir Bishanprit, etc.," in the khasra and that when there is no such entry in the khasra, the whole decision of the Subordinate Judge is vitiated as the finding is base on a fact which is non-existent. Further on in the judgment the learned Subordinate Judge observed that although the Goshagali was measured as apart of plot No; 211 it will appear that it was the nikas of Mahadeo Pande and others and Musammat Pano Kuer could not obviously sell it away. Mr. Manuk contends that here there is an inconsistency in the finding of the learned Subordinate Judge. His first finding being that Pano Kuer had a title to the lane, the subsequent finding that she could not sell it away is inconsistent with that finding. The plaintiffs'' case was that the lane in dispute was the barhmottar land belonging to their ancestors and to themselves and the learned Subordinate Judge has found that this allegation is correct under the mis-conception that it is described in the khasra under the column of "Jagir Bishanprit, etc." There being no such entry in the khasra the finding of the learned Subordinate Judge cannot be sustained inasmuch as it is based on", a mis-reading of the khasra. This khasra (Ex. 15) was a very important piece of evidence in the case and the learned Subordinate Judge relies upon it very strongly; and one does not know what would have been his decision if he had read the khasra correctly.

The documents marked Exs. 13 and 7 which are next considered by the learned Subordinate Judge do not prove the plaintiffs'' title to the lane; they only show that the lane was the nikas or passage of egress and ingress of the houses of Mahadeo Pande and others. The learned Subordinate Judge himself observes that the documents Exs. 7, 17, 8, 11 and 12 referred to him do not prove the ownership of the lane to belong to the plaintiffs. As regards the sale-deed (Ex. 19) the learned Subordinate Judge refers to the eastern boundary thereof which is shown as Galimai nala Bisessar Pande. This is the deed by which the defendant purchased the house marked F. Bisesar is one of the plaintiffs in this case and from the description of the eastern boundary of the house marked F the learned Subordinate Judge comes to the conclusion that the lane in dispute belongs to Bisesar Pande. It is, however, pointed out by Mr. Manuk that the lane there referred to is the lane to the east of the house, marked F which is not in dispute in the present, case. The dispute relates, to the lane lying, to the south of the house marked F and the description of the southern boundary in this deed (Ex. 19) is merely gali amad raft, i.e., a lane which is a passage for ingress, and egress. This does not show that the lane in dispute belongs to Bisesar Pande and the different descriptions of the eastern and the southern boundaries in the same document are remarkable.

There is thus a serious error in the judgment of the Subordinate Judge as regards Ex. 15 and as I have said it is impossible to say what the decision of the Subordinate Judge, would have been if he had. correctly read Ex. 15. Further he has considered, only one of the boundaries given in. Ex. 19 and has not considered the southern boundary thereof which was very important. I am, therefore, of opinion that the decision of the learned Subordinate Judge cannot tee maintained. The decree appealed against must, therefore, be set aside and the appeal remanded to the Subordinate Judge for disposal after reconsidering the evidence in the case. Costs will abide the result.