NANI GOPAL SARKAR Vs. SITANATH SARKAR

JUDGEMENT

(1.) The points raised in this appeal (sic) whether the villagers of a village are fluctuating body of persons; whether they as such can acquire a right of way; if so, what would be the nature of such right and what would he the quality of the evidence by which such a right was capable of being supported; how can it be acquired viz., whether by custom, lost grant, prescription or adverse possession. It had led to other questions; viz., whether such a customary right would be like all other local customs. If so, would such a custom be reasonable? Again, what should be the length of the user and the period of enjoyment from which a reasonable inference could be drawn as to the acquisition of such a right of way i.e.. whether the theory of 'time immemorial' would be incumbent in all such cases; and lastly whether the villagers, could in such cases give a common consent.

(2.) Several decisions are cited on respective, points. Many of them are Bench decisions. Some of them, as has been argued, do not go the very same way as the other decisions. There are decisions of other High Courts. For exam-ple. Mudholkar, J. (as his Lordship then was) inter alia hold in the case of Bari Kumbhakar v. Tukaram Teli that the villagers are not fluctuating body of persons. It is submitted that the Supreme Court has not pronounced the law as such, in the case of Braja Sundar v. Moni Behara. The Bench decision of this Court in the case of Gopal v. Abdul, 34 Cal LJ 319: (AIR 1921 Cal 569) which has been cited against the appellants, has been distinguished by this Court in the case of Abdul Hossain v. Sadai Gobinda, (1938) 42 Cal WN 1102. Another Bench decision of this Court in the case of Asrabulla v. Klamatulla, ILR (1937) 2 Cal 86: (AIR 1937 Cal 245) cited by the appellants, on the other hand, has been approved by their Lordships of the Judicial Committee in the case of Lakshmidhar Misra v. Rangalal, AIR 1950 PC 56: 70 Ind App 271 which in its turn again is approved in the said Supreme Court decision of Moni Behara (supra).

(3.) The other decisions cited are Chuni Lall v. Hamkishen Sahu, (1888) ILR 15 Cal 460 (FB); Kuar Sen v. Mamman, (1895) ILR 17 All 87; Prodyot Coomar Tagore v. Gopi Krishna Mondal, (1910) 11 Cal LJ 209; Ali Md. v. Sheikh Katu, 36 Cal LJ 280: (AIR 1923 Cal 200); Panchanon Ray v. Fazlur Rahman, AIR 1942 Cal 505; 46 Cal WN 743; Baba Narayan v. Saboosa, AIR 1943 PC 111: 47 Cal WN 923; Mt. Subhani v. Nawab, 68 Ind App 1: (AIR 1941 PC 21); Gokul Chand v. Parvin Kumari, AIR 1952 SC 231: 1952 SCR 825.