Kameshwar Narain Singh vs Janardhan Prasad Narain Singh and Others

Kulwant Sahay, J.—These two appeals arise out of a decree passed by the District Judge of Darbhanga whereby he modified a decree of the Additional Subordinate Judge. Appeal No. 452 is by one of the defendants 1st party and Appeal No. 456 is by the plaintiff. The case made by the plaintiff in the plaint was that he and the defendants 1st and 2nd parties were the 16 as proprietors of Mouza Bishunpur Narhan and Patti Nizamat bearing Touzi No. 3942, that the said Mouza was under Collectorate partition which had not been finished at the time the suit was brought and that before the said Collectorate partition the said mouza was never divided by the proprietors amongst themselves. But for the sake of facility in enjoyment and use of the joint property the names of different proprietors were entered against some of the plots in the Khatian. The plaintiff stated that his zenana house was situated on plots Nos. 2983, 2984 and 2985 and that his male quarters were situated on plots Nos. 2964 and 2965. The dispute was as regards plot No. 2966. The plaintiff claimed that this plot 2966 which was an open parti land in front of his male quarters was used by him under right of easement for holding parties, panchayat and celebrating marriage festivals, etc. He also claimed a right of easement to pass from his male quarters to his female quarters across a foot-path in plot No. 2966. He further claimed that plot 2966 belonged to him in proprietary interest. The reliefs asked in the plaint were:

(1) It may be held by the Court that in the land bearing No. 2966, the plaintiff has acquired the right to use the land at the time of marriage, dance parties, sradhs, bhoj and panchayats, etc., and that the way which is marked as (K), (Kh) and (Ga) in the map attached to the plaint, has been in use without resistance for more than 60 years and that the said right of easement is necessary.

(2) It may be held by the Court that defendants 1st party have no right to erect the house on the said land and that if a house is erected on the aforesaid land the plaintiff will be put to serious loss and the way leading to the male quarters from the female quarters will be closed.

(3) That an adjudication of relief Clauses (1) and (2) defendants 1st party may be forbidden by a perpetual injunction from erecting any house and the house which has already been built may be demolished and the aforesaid land be cleared.

The defence of the defendants was that Plot 2966 belonged to defendant No. 1 exclusively, that the plaintiff had acquired no right of easement over the said plot and that the suit was barred by res judicata. The first Court held that the plaintiff had failed to prove any right of easement over plot 2966. He further found that the plaintiff had failed to prove that plot 2966 belonged to him exclusively. The learned Subordinate Judge therefore dismissed the suit. On appeal by the plaintiff to the District Judge the finding of the Subordinate Judge has been upheld, as regards the question of the plaintiff''s title to plot No. 2966 and also the easement claimed by the plaintiff as regards his right to hold parties over 2966 but as regards the right of way, the learned District Judge has come to a finding that the plaintiff has succeeded in establishing a right of way from his Baithak to his zenana house along the foot-path which extended over O to G in the map filed with the plaint in a straight line. The learned Judge also found that the defendants had completed the house on plot 2966 before any notice was given to them to show cause why injunction should not be issued. In the circumstances he thought that it was not a fit case of mandatory injunction. He held that the plaintiff had no doubt a right of way over the disputed land in a straight line from O to G in the Commissioner''s map, but in view of the circumstances appearing in the evidence he was of opinion that this right has now to be exercised by the plaintiff along the line marked O, N, B, F and G in the Commissioner''s map and that the plaintiff would not be entitled to use the foot-path claimed although it was found that he had acquired a right by prescription.

Now having regard to the case made by the plaintiff I fail to see how the plaintiff can claim the right of easement over plot 2966. His own case is that the whole village is jointly held by him and defendants 1st and 2nd parties and that there is a partition proceeding going on in the Collectorate for a partition of the village among the proprietors. Now if he is the owner of the village he can obviously have no right of easement against himself. The learned Vakil for the plaintiff-appellant relies upon the finding of the District Judge that the plaintiff has failed to prove that plot 2,966 belonged exclusively to him. What the finding means is that although there has been no actual partition of the village amongst the co-sharers, yet each co-sharer is in exclusive possession of certain plots. Now exclusive possession by co-sharers of portions of undivided estates is a common thing. Such exclusive possession does not amount to an ouster of the other co-sharers. Every joint owner has a right to use any portion of the joint lands so long as he does not exclude the other co-sharers from it. In the present case the use by the defendants of plot 2966 exclusively is not an ouster of the plaintiff and if the plaintiff is dissatisfied with the defendants'' using plot 2,966 exclusively, his only remedy is by way of partition. Upon the case made by the plaintiff, I fail to see how he can claim any right of easement over any portion of the village of which he is a co-owner. I therefore fail to see how the learned District Judge could come to a finding that the plaintiff had acquired a right of easement by prescription over plot 2966. In the circumstances, I think that the decree made by the Subordinate Judge was correct and the suit of the plaintiff must; be dismissed with costs throughout. Appeal No. 452 of the defendant is decreed and No. 456 of the plaintiff is dismissed, one set of hearing fee being allowed in both the appeals.

I may add that upon the case made by the plaintiff it is not necessary to decide whether plot 2966 is the exclusive property of the defendants or whether the plaintiff has also got a title to this plot jointly with the defendants. That question must be left open in the present suit.

Ross, J.

I agree.