SRIDHAR PANI Vs. DURYODHAN MAHALI

JUDGEMENT

(1.) THE suit was one under Order 1, Rule 8 C. P. C. for a declaration that the plaintiff and the villagers have the customary right of user of plot No. 432 as a rasta, for permanent injunction and for removal of the encroachment on 1 1/2 decimals of land on the eastern portion of that plot. As the point argued in the second Appeal lies in a narrow compass, it would be sufficient only to state the relevant facts. It is the common case of parties that plot No. 432 has been recorded in the current settlement of the year 1930 as a tank in the names of the predecessors of defendants 1 to 8. It touches the Sarbasadharana rasta in plot No. 433 to the east and another Sarbasadharana rasta in plot No. 373 to the west. The mahadeb Temple is situate on plot No. 430 which lies to the north of the eastern end of plot No. 432. The temple of Budhibasulei Thakurani is situate on plot No. 421 lying to the south of the western end of plot No. 432 Plot No. 432 starts from the Sarbasadharana rasta in plot No. 373 near plot No. 421. Plaintiffs case is that the villagers have a customary right of way on plot No. 432 whereupon they traverse in order to have Darshan in the temple of Budhibasulei Thakurani and the mahadeb and in order to pass from Sarbasadharana rasta on plot No. 373 to the sarabasadharana rasta on plot No. 433. Sometimes in 1959 defendants 1 to 8 put obstruction on plot No. 432 by putting a fence over 1 1/2 decimals of land on the esatern portion of that plot obstructing the right of passage. Defendants 1 to 8 contested the suit stating that plot No. 432 was recorded as a tank and was used as such and that it was not a rasta over which plaintiff and the villagers have a customary right of user.

(2.) THE learned trial court held that the plaintiff had a customary right of user of the suit land as a rasta which was not a tank but was used as a passage. It decreed the plaintiffs suit and directed defendants 1 to 8 to remove the encroachment on the eastern portion of the suit plot (1 1/2 decimals) which was effected after the institution of the suit. The decretal order of the learned lower appellate court may be quoted in extenso:

(3.) THE only question raised by Mr. Mohanty is that in the absence of any assertion on the part of the contesting defendants that the suit rasta was being used in a restricted manner, the judgment of the lower appellate court in defining it is contrary to law. In the written statement the contesting defendants averred that the plaintiff had no customary right of way on plot No. 432. It was not their case that in fact plaintiff had a customary right of way and that it had extended to the whole of the rasta adjoining plot No. 421 and was confined to 5 links in the northern portion of plot No. 432, Doubtless when customary right of way is claimed, the onus is on the plaintiff to prove that the custom was ancient, invariable, certain and reasonable. Plaintiff so pleaded. It was not necessary for him to plead evidence of user. During the trial plaintiff and his witnesses stated that the entire plot No. 432 was being used as a rasta in order to pass from Sarbasadharana rasta in plot No. 373 in the west to the Sarbasadharana rasta in plot No. 433 in the east and to visit budhibasulei Thakurani in the west and the Mahadeb Temple in the east. The width of plot No. 432 is 4 to 6 cubits varying from place to place. To carry a Biman of the Chalanti Pratima (Alter ego) during the festive occasion when large crowds gather, user of a piece of land of the width of 4 to 5 cubits is quite reasonable. The learned Judge recorded a finding on the analysis of the evidence that such material existed, but he discarded the same as there was no pleading in the plaint referring to the factum of carrying of Biman during festive occasions. It is elementary that only material facts and not evidence are to be pleaded. Plaintiff has satisfactorily established that the customary right of user of the entire disputed rasta was reasonable. So far as other ingredients of the customary right of user are concerned, the learned Subordinate Judge held in favour of the plaintiff and accordingly passed a decree. He restricted the right to the whole of the rasta near plot No. 421 and to 5 links at other places on the sole ground that granting such a relief would not be reasonable. The learned Judge misconceived the law Whether a customary right claimed is reasonable or not would depend on the facts and circumstances of each case. No hard and fast rule can be laid down, Here plot No. 432 is only 4 to 5 cubits wide. The mere fact that if the whole of the disputed land is allowed to be used as a rasta it would result in complete extinction of the right of the owners would not by itself make the user unreasonable. The conception of law on the basis of which plaintiff's right of user was restricted is erroneous. It is also difficult to appreciate as to on what reasoning the learned Judge allowed the user of the entire width of plot No. 432 near plot No. 421 and why he restricted it at other places.