Haripada Das vs Panchameswari Dasi

Bhattacharya, J.—Defendants in the suit for declaration of right of easement inter alia are Appellants here, having lost in both the courts below.

The Plaintiff sued for a declaration of a right of easement to discharge water from and to receive fish and water into her tank in C.S. plot No. 1048 and for a further declaration that the Defendants have no right to obstruct the inflow and outflow of water therefrom. The Plaintiff further prayed for a permanent injunction against the Defendants restraining them from interfering with the above right and also for a mandatory injunction directing them to remove the obstruction already put up by them and in default for a decree of Rs. 20 as compensation for costs of removal of the same. The learned trial court decreed the suit in part only, in respect of the right to discharge water from the tank in C.S. 1048. There was also an order for removal of the dams within a month and in default the Plaintiff was awarded Rs. 20 as costs of removal. The learned Subordinate Judge on appeal affirmed the judgment and the decree of the trial court.

No case map was prepared. The Plaintiff purchased plot No. 1048, the alleged dominant tenement on November 15, 1927, from Manu Das, father of Defendant No. 1. Manu Das was the owner of plot No. 1185 which is separated from plot 1048 by a strip of land, plot No. 1186, which is the khas land of the landlord and over which the villagers seem to have acquired a right of way, if the C.S. record is correct. Plot 1186 is on the east of plot 1048. On the east of plot 1186 is Defendant No. l''s plot No. 1185, which Defendant No. 1 inherited from his father Manu Das. On the east of plot 1185 is plot No. 1184 belonging to Defendants 2 to 4. On the east of plot 1184 is plot No. 1219, belonging to pro forma Defendant No. 5 and the Plaintiff jointly. By the east of this plot is plot No. 1220 which is a ditch running north to south. According to the Plaintiff this ditch carries water from his tank situated in C.S. plot 1048 through the above there plots. In the record-of-rights plots 1185, 1184 and 1219 are recorded as khanas or low lands. In the record-of-rights there is a mention that Manu Das had a right of boat passage over dag 1184. Against dag 1219 there is a note that (Sic)anu Das and another person (Bhuban Pahari) had a right of boat (Sic) sage over the plot. Defendant No. 2 is Bhuban Pahari.

The Plaintiff alleged that the cause of action arose after erection of two cross dams in khana 1185 by Defendant No. 1 in Baisakh 1358 and erection of another dam subsequently in khana 1184 by Defendants 2 to 4.

On the north-north-east of the tank plot No. 1048, as the learned courts have found, there is an opening. This opening must have been in existence for a long time, as Ext. 1, the kobala of Manu Das in favour of the Plaintiff indicates. In this document of the year 1927 there is definite mention of this opening (''Janmukh''). The eastern boundary of plot 1048, as indicated in Ext. 1, is the bastu Or the homestead of Manu Das, although no evidence was adduced at trial The kobala definitely refers to an opening of the tank on the north-north-east as depicted in the sketch map appended to the plaint. It may be noted here that the necessity of discharging water from the Plaintiff''s tank was not seriously contested. Although there is no definite finding as to the respective levels of the different plots in question, in the absence of a proper survey the learned courts below appear to have come to the conclusion in view of the surrounding circumstances, particularly the topography and the nature of the lands lying between C.S. plot 1048 and the eastern (Sic)itch in plot 1219, that water flows from the tank to the khana (Sic)nds on the east.

The basis of; the easement so far as the servient tenement 1185 is concerned was found in the courts below to be a grant by Manu Das in favour of the Plaintiff at the time of the latter''s purchase from the former in the year 1927. The document is silent as to the actual grant. But the learned Munsif relied on the evidence of two witnesses on the side of the Plaintiff. The learned Subordinate Judge accepted the testimony of these witnesses specially because of the mention of "janmukh" in the kobala, both the courts held that Manu Das did make such a grant. The learned Advocate for the Appellants has urged that Section 92 of the Indian Evidence Act would be a bar to the reception of such oral evidence. Now, for creating such a grant no document was indispensably necessary. The proviso (2) of Section 92 of the Indian Evidence Act will go to show that oral evidence of the nature adduced in this case would not be hit by Section 92. Consequently the findings of fact cannot be disturbed in the second appeal here.

It has been urged on behalf of the Appellants that since the Maharajadhiraja of Burdwan, who owns plot 1186, and the villagers who had acquired a right of way, had not been made parties, the suit must fail. This has been specially urged in reference to f(Sic) alleged acquisition of easement right in plot No. 1185 which (Sic) separate from the tank in plot 1048 by plot No. 1186. There (Sic) already a definite finding of fact that at the end of plot 1186, on the extreme north, that is, by the side of "janmukh" or the opening o(Sic) the tank in plot 1048, there is a sort of bamboo bridge. It has been contended that as the rights of the Maharajadhiraja of Burdwan and the villagers will be affected, the entire suit should fail. No one however has alleged either in the pleadings or in course of trial that any objection has been raised by the Maharajadhiraja of Burdwan or the villagers. Nor is there any allegation that any obstruction has been put up by them. Prima facie there is no insuperable obstacl (Sic) or bar to the acquisition of a prescriptive right of easement to discharge the water across plot 1186 under the bridge. In certain circumstances such a right could be acquired. The question no(Sic) is whether on account of defect of parties the suit should fail a(Sic) claimed by the Defendants. The case Madan v. Akshoy (1909) 14 C.W.N. 15 referred only to bringing on record the owners of the service tenements in suit. Moreover the decision in Madan v. Akshoy di not rest entirely on this issue, which does not appear to have bee finally decided also. Six years later another case was decided this Court: Madan v. Sashi (1915) 19 C.W.N. 1211. There the question was whether a suit brought by the Plaintiff for a declaration of right of way ill alia was to, fail on the ground, that the owners of all the served tenements over which the right of way was claimed had not be made parties, It Was held that the suit in view of the circumstances would not fail on that account only. In Surja Ndrain Bera v. Chandra Bera (1924) 40 C.L.J. 74 reliance was placed on the case of Madan v. Sashi (supra). There also in similar circumstances it was held that as the cause of action on the pleadings was limited to those persons who were alleged to have interfered with the Plaintiff''s right, the suit would not be bad for failing to bring on record certain interested persons. It was observed that on the Plaintiff''s case as made out in the plaint the suit was maintainable, although it might be desirable to make all persons party to the suit who might possibly dispute the right. In Kedaruddin v. Samsur Mata (1937) 41 C.W.N. 769 reliance was placed on Madan v. Sashi (supra) and Surja Narain Bera v. Chandra Bera (1924) 40 C.L.J. 74 and it was held that it would not be necessary to add as Defendants those persons who were not parties in the act of obstruction complained of. A contrary view was indicated in Haran v. Ramesh (1920) 25 C.W.N. 249 but the earlier cases were not referred to. On the ground that the decree would be infructuous it was held that in the absence of a person who had any interest in the property the Plaintiff could not succeed since such an interested person would be materially affected by the establishment of such a right. In view of the decisions both prior to and subsequent to Haran v. Ramesh (supra), it may be said that on the cause of action stated in the pleadings the Plaintiff''s case in limiting the reli as against those persons who are alleged to have interfered with the Plaintiff''s right will not be fatal by itself to the suit. In this view the grant made by Manu Das in favour of the Plaintiff in regard to his own plot 1185 cannot be successfully challenged simply because of the interposition of plot 1186 (over which, because of the presence of the bridge, villagers prima facie may still pass and repass and exercise their right of way, if any).

In regard to the Plaintiff''s claim of easement right over plot 1184 it has been contended on the side of the Appellants that the khatian entries referred to above speak only of a personal right in favour of Manu Das and that consequently the right of easement which is appurtenant to a dominant tenement and is not a personal right cannot be inferred therefrom. The learned courts below however considered the entries in the khatian in appraising the oral evidence on the side of the Plaintiff. If boats were to ply, the flow of water obviously could not be obstructed by any dam or otherwise. In the circumstances it cannot be said that any infirmity exists in the judgment of the learned lower appellate court. More than 20 years'' user had been found in favour of the Plaintiff. The evidence on record and the circumstances would not justify any interference with this.

In the result, the appeal fails and is dismissed, but in the circumstances parties will bear own costs throughout.

Leave to appeal under Clause 15 of the Letters Patent is prayed for and is refused.