GOPAL CHARAN LAHA Vs. DAITARY NANDY

JUDGEMENT

(1.) PLAINTIFFS who have been unsuccessful in both the Courts below have brought this second appeal arising out of a suit claiming for an order of perpetual injunction restraining the defendants from hanging tarpulin and other clothings and performing Jatra thereunder on the Sarbasadharan Road in the town of Bhadrak while the plaintiffs would be carrying on their religious procession for immersion ceremony of the deity "Durga" on the dasahara days. PLAINTIFFS' case is that they belong to very ancient family, known in the locality as Laha Family, of Bhadrak, and from time immemorial they have been celebrating the Durga Puja festival by worshipping and offering bhog to the Durga image during the Dasahara days; they have been carrying on religious procession for the immersion ceremony on the public street of the town of Bhadrak to perform the, immersion ceremony in the river Salandi. While the procession would be carried on through the public highway on the road there are the houses of the defendants on both side of the public highway where also they celebrate the Durga Puja by installing the deity "Hara-gouri" on plot No. 58/1033, the house of the defendants on the other side of the public highway being situate on plot No. 840. The defendants perform Jatra on these festive occasions by hanging tarpulin, other Palas and clothings. The plaintiffs' grievance is that the defendants have no such right, and as such they pray for a permanent injunction restraining the defendants from performing their Jatra and hanging tarpulin and other clothings as they are impure and they would obstruct the procession. The plaintiffs based their case on pure easementary rights which prima facie is misconceived. The defence is to the effect that there has been absolutely no obstruction to the religious procession led by the plaintiffs for the purpose of celebrating the immersion ceremony of Durga installed in the house of the plaintiffs on the Dashara days. The defendants also assert that they have been performing their Puja ceremonies in their houses for a very long time and while celebrating the iestive occasions on the Dashara days they enjoy the appropriate observances of the puja festivities by giving Jatra performances on the public highway, having previously obtained the permission of the appropriate authorities and without in the least disturbing or causing inconvenience to the traffic of the public. It may be noted, the admitted feature is that on both sides of the public highway are situate the houses of the defendants and the front doors of the defendants only open to the public highway. On the aforesaid pleadings, quite a number of issues were framed by the trial court, and the trial court having considered and fully discussed each of the issues, dismissed the plaintiffs' suit. The judgment of the trial court having been confirmed by the first appellate court, the present Second Appeal has been brought.

(2.) ON a perusal of the judgments of the courts below, I find there has been an unnecessary lengthy controversy regarding the easementary rights and the customary rights. To my mind, in cases of this nature, introduction of questions like easementary rights and customary rights is completely misconceived. The real controversy between the parties is fully settled by the principles laid down by their Lordships of the Privy Council in Manzur Hassan v. Muhammad Zaman, AIR 1925 PC 36. Their Lordships enunciated in very clear and unequivocal terms: