ANADI HATI Vs. DHARAMU BEHERA

JUDGEMENT

(1.) PLAINTIFF's case may be stated in short. Plaintiff is the owner of plot No. 1162. Defendants 1 and 2 are the owners of plot No. 1170/1623. Both the plots adjoin. Plot No. 1172 is Anabadi land and is undisputedly used as a lane. Plaintiff has his latrine in plot No. 1162. Defendants have their latrine in plot No. 1170/1623. Plaintiff's latrine is being cleaned by municipal sweepers since time immemorial. They come from Ranihat-Manglabag road through plot No. 1172 and enter plot No. 1162 through plot No. 1170/1623. Plaintiff claims right of way on the disputed passage over plot No. 1170/1623 by way of easement. The disputed passage is claimed to have been used peaceably and openly as of right without interruption for much more than twenty years. The suit was filed in 1957. Defendants 1 and 2 who contested the suit denied the existence of the right of way. The trial court dismissed the suit holding that plaintiff has acquired no right of way by easement. An appeal by the plaintiff against the trial court decree was dismissed. In second appeal No. 232 of 1964 filed by the plaintiff the case was remanded. The lower appellate court had found that the compromise petition dated 27-9-52 (Ext. 12) was genuine. In remanding the case the High Court directed that the lower appellate court should go through the entire evidence and record a finding wheteher plaintiff had acquired a right of way by easement. After remand, the lower appellate court held that Ext. 12 is genuine and had been acted upon and as it merely recognised a pre-existing right it required no registration. On thorough discussion of the materials on record it came to the conclusion that plaintiff had established acquisition of right of way by easement. The suit was accordingly decreed. Against the appellate decree defendants 1 and 2 filed Second appeal No. 96 of 1969. Our learned brother B. C. Das, J. agreed with the lower appellate court that plaintiff had exercised the right of way for more than the prescriptive period of twenty years openly and peaceably as of right. He, however, dismissed the suit holding that user of the disputed passage by the municipal sweepers cannot create a right of way in favour of the plaintiff. It is on this ground alone that he allowed the second appeal and dismissed the suit. On his granting leave, the A. H. O. has been filed by the plaintiff. This is how the matter has come before us. Before the learned Single Judge the findings of fact recorded by the lower appellate court were attacked. The learned Single Judge on careful examination found no merit in those contentions. Before us also Mr. Rao made a faint attempt in saying that the lower appellate court and the learned Single Judge did not examine the question whether the user of the way for more than twenty years was peaceably or not. On perusing the judgments we are of opinion that the contention is merely an attempt to get over the findings of fact which are binding on this court in Second Appeal under Section 100, C. P. C.

(2.) THE sole question for consideration is whether plaintiff's acquisition of the right of way by easement over the disputed passage is to be negatived on the ground that the user of the way is by the sweepers of the municipality and not by the plaintiff himself.

(3.) THERE is no dispute that the right of way is claimed only for the limited purpose of the municipal sweepers coming by the disputed passage to clean plaintiff's latrine. Before we examine the relevant authorities it would be useful to analyse the question on first principles.