DHARINDHAR GUIN Vs. NETAI CHANDRA HALDAR

JUDGEMENT

(1.) THIS is an appeal by the plaintiff Dhasranidhar Guin whose suit for a declaration for a private right of way fails in the court of first instance, and on appeal, also in the court of appeal below. What bulks large in this litigation is plot no. 488 admeasuring. 56 acre and recorded as saiyam land (paddy land of an inferior type) in the names of two brothers, Bholanath Rooj and Pashupati Rooj, in khatian no. 452, exhibit 3/b, of mouza Srifala within the jurisdiction of Rampurhat police-station in the district of Birbhum. The Roojs have been entered as settled raiyats. A look at the cadastral survey map, exhibit 4, and the case map prepared by the pleader commissioner shows how this plot stands. It is bounded-on the north by plots 844, 848, 857 and 851 of which "844" is on its north-west and "851" on its northeast ; on the south by plot no. 847 ; on the east by the whole of plot no. 850 and the northern portion of plot no. 849 ; and on the west by more than a moiety of plot no. 845 in its northern portion. "845" being a plot of an irregular shape which extends south to north.

(2.) ON the immediate west of the last named plot-"845"-is the District Board road recorded in the cadastral survey map as plot no. 877. On the immediate west of plot no. 844 is plot no. 1039 on the adjacent west of which is the same District Board road. This road also runs south to north with a slant towards the west as it goes north arm with a slant towards the east as it goes south. More, this is the only road in this part of Shrifala mouza, as the indications (sanketik) given in the cadastral map itself go to indicate: rasta (road)877. No doubt this map is sheet no. 2. But that cannot matter. Because the boundaries set out in the map, sheet no. 2, of Shrifala mauza are-north ramrampore no. 29; south rampurhat no. 77; east batail no. 104; west sheet no. 1 of Shrifala no. 78. So the roads in the three mouzas just named or in the other part of Shrifala represented by Sheet No. 1 of the cadastral survey map will not avail the appellant. The only road which avails him is plot no. 877 depicted in Sheet No. 2 of the map, exhibit 4. And to reach this very road-the only road-from plot no. 846, a twofold private right of way is claimed. One is a pathway straight from the District Board road along the ails, three cubits broad enough, through the southern part of plot no. 1039 on the adjacent east of the said road, wending a little south when roughly it skirts on the west of the southern part of plot no. 844, then turning east and reaching plot no. 846 after almost skirting on the south of plot no. 844. Another is a cartway issuing from the District Board road on the west and running straight and east through the northern portion of plot no. 845 and the southern portion of plot no. 844, and thus reaching plot no. 846. The appellant Guin claims this sort of a private right of way, because his father, now dead, had auction-purchased plot no. 846 along with many other plots on May 7, 1937, in execution of his own decree against the Rooj: money execution case no. 50 of 1932, as is apparent from the relevant sale certificate, exhibit 1, and also got delivery of possession through court on July 22, 1937, as is apparent from the process-server's return in the relevant writ, exhibit 2. The claim of an easement as that is rested on four grounds-statutory prescription, lost grant, one of necessity and custom-all of which the learned munsif, and on appeal, the learned additional district judge negative. Hence this second appeal.

(3.) MR. Chaudhuri, the learned advocate for the appellant, does not challenge the finding of fact on prescription but places the easement of necessity in the forefront of his submissions. How plot no. 846 is situate has been noticed. Without some such easement as the appellant claims, it becomes difficult to reach the District Board road from the appellant's land or to reach the land from the road, though evidence discloses that an alternative route over a neighboring drain, after it is filled up with earth, has been improvised. But only because it is so, I shall not find an easement of necessity. Indeed, it is now well held that necessity simpliciter, far less convenience, does not foster an easement of necessity. As G. N. Das, J. holds, Lahiri, J. (as he then was) agreeing, in (1) Nanigopal Dutta and others v. Kshitish Chandra Banerjee and another: A. I. R. 1952 Cal. 108 at page 110: