RAM SARAN Vs. NARAYAN CHANDRA

JUDGEMENT

(1.) The suit out of which this second appeal arises was instituted in the trial court by the plaintiffs on their behalf and also as representing the inhabitants of village Joy-kristapur and other neighbouring villages for a declaration of a public right of way over three settlement plots described in the schedule of the plaint. The allegation of the plaintiff in brief was that these three plots were being used by the villagers of Jaykristapur as well as of other villages as pathways from time immemorial for passage of men, cattle, cart etc., and such user was referable to some dedication or lost grant in some remote antiquity. It was further the case of the plaintiffs that defendant Johur Muchi began to convert these pathways into-agricultural plots from the last part of 1350-B.S. He is unjustified, according to the allegation of the plaintiffs, in preventing the plaintiffs and other people from using the pathways and hence the occasion for the suit. The pathways were described in three plots in the schedule of the plaint, the first plot comprising dag no. 1007 in its entirety and the remaining two plots comprising portions of C. S. dags 1178 and 1680.

(2.) The defence in brief was that the disputed lands never constituted pathways and they had all along been khas lands of the landlord and the defendant took settlement of two out of these three disputed dags viz., C. S. plots 1007 and 1178 on executing a kabulyat on the 19th Chaitra, 1350. His case was that since the above settlement he had been in cultivating possession of the disputed plots. The defendant no. 1 disclaimed any interest in C. S. plot no. 1680.

(3.) The original defendant died during the pendency of the suit in the trial court and his heirs were substituted in his place. Two of these heirs viz., the sons of Johur Muchi, adopted the written statement of the original defendant and contested the suit. The defence was. negatived and the suit was decreed by the learned Munsif who made a declaration of the plaintiffs' alleged right of way over the disputed lands and also made an order for restoration of the lands to the former condition. The defendants were also restrained by an injunction from obstructing the pathways in future. Against this decision of the Munsif an appeal was preferred by the defendants before the District Judge, Burdwan. The appeal was heard by a Subordinate Judge who dismissed it. So the defendants have preferred this Second Appeal.