Sreemati Soojan Bibi and others vs Shamed Ali

Norris, J.—This is an appeal from the decision of the Subordinate Judge of Chittagong who has reversed the decision of the Additional Munsiff of Hathazari. The plaintiff sued in respect of a right of way over certain lands belonging to the defendants. His case was a twofold one. First of all he said that he had acquired this right of way by something like a hundred years'' uninterrupted user; and he further said that he had obtained a decree in respect of it on the 19th December 1874. He complained that the alleged obstruction was placed in the way in 1889, and asked for the removal of it.

The defendant denied that there was any right of way, and alternatively said that in the year 1883 the plaintiff had voluntarily surrendered the right of way claimed in exchange of another way which the Defendant had given him; and that the plaintiff had been using such substituted way since the year 1883.

The Munsiff dismissed the plaintiff''s suit, finding that the defendants'' allegation of the substitution of one way for another was actually proved.

The plaintiff appealed, and the Subordinate Judge reversed the Munsiff''s decision and gave the Plaintiff a decree.

The Subordinate Judge found that the alleged substitution of one way for another had not been proved.

It appears from a perusal of the Subordinate Judge''s Judgment that when the case was before him on appeal, the Defendant further contended that the plaintiff''s suit was barred by two year''s limitation u/s 26 of the Limitation Act. The plaintiffs on the other hand apparently contended that he had the period of twelve years within which to bring this suit. There is no distinct finding by eithgr Court as to when the alleged obstruction "was erected; but there is a finding by the Subordinate Judge that the suit was brought within 12 years from the erection of the obstruction, and so he has held that the suit was properly brought. Therefore we must take it that his finding was that the period of twelve (12) years limitation applied.

On second appeal it has been argued by the learned Vakeel for the appellant that two years'' limitation applies to this case; and that as the suit was instituted on the 16th May 1890, and there is no finding as to when the obstruction took place, the case ought to go back for a finding upon that point. I am of opinion that there is no necessity whatever to remand the case, but that upon the facts found by the Lower Appellate Court the plaintiff is entitled to hold his decree. It is found as a fact that the plaintiff obtained a decree declaring him entitled to this right of way so far back as the 19th December 1874, and, as I have already said, though he did claim under the provision of section 26 of the Limitation Act., he also based his claim upon his previous decree. That decree gave him a title to the right of way over the land, and any interruption of that I think u/s 23 of the Limitation Act gave him a continually recurring cause of action de die in diem. In the case of Punja Kavarji v. Bai Kuvar (1) the facts were that " from time immemorial, and certainly for more than twenty years prior to the date of the obstruction by the defendants, the plaintiff enjoyed the right of having an egress for his rain water through a drain in the defendant''s land. The plaintiff, more than two years after the date of the obstruction, sued the defendants for the (1) ILR 6 Bom. 20. removal of the obstruction," and it was held "that though, under the circumstances, the plaintiff had failed to prove a title acquired u/s 26 of Act XV of 1877, yet the plaintiff, having a title, evidenced by immemorial user did not require the aid of that Act; and inasmuch as the obstruction complained of, constituted a continuing nuisance, as to which the cause of action was renewed de die in diem, the plaintiff''s claim was not barred by any provision of the Act, but, on the contrary, was saved by the express provision of Section 23." If for the words " evidence by immemorial user," we substitute the words " acquired by virtue of the decree of the 19th December 1874," this case is, it seems to me, precisely on all fours with the Bombay Case, and the law there laid down is applicable to the present facts. Therefore on the best consideration that I can give to the case I think that the appeal fails, and must be dismissed with costs.