BRAJRAJ RAMANUJ DAS Vs. AJIMAN NISA BIBI

JUDGEMENT

(1.) THE plaintiff is the appellant in this second appeal. The dispute relates to a ferry right across the river called variously as 'Harachandi, Sunnamubi, Kama or Deshi.' The river flows through a village called Narasinghpatna in the Sadar Sub -Division of Puri and the ferry claimed is situated in this village. The portion of the river bed in this village is 50 acres and 90 decimals in extent consisting of plot NOS. 63 and 471 in the Anabadi Khata No. 104 of the village. The plaintiff who is the Mahant of Pandit Muth of Puri is the recorded proprietor of the village Narasinghpatna including the two plots Nos. 63 and 471. The defendant is the owner of the Khandayati Jagir of Rendhagarh in which is included the village Sipasurubili which lies to the west of the river adjacent to the plots NOS. 63 and 471. For a few months in the year, that is, during the rainy reason and high floods, the river is not fordable at this place and passengers who have to cross from one side to the other have to be ferried across by boat. It is said that this crossing is part of the highway from the Ganjam side to Puri and is in use by the pilgrims from the south to Puri and by the villagers from the Puri side to Chilka area. In the current settlement of 1928, the Khewat part I, dated 12th January 1928, marked as Ex. II shows the plaintiff as the proprietor of plots Nos. 63 and 471 (River) of Anabadi Khata no. 104 with a note against plot No. 63 that Sk. Md. Asghar ferries across the river by boat during the flood season at the river ghat. Sk. Md. Asghar is the husband of the present defendant. The plaintiff's case is that this settlement entry has been fraudulently obtained and that he himself, as the owner and proprietor of the bed and the banks and the landing ghats on either side of the river, has the right to the ferry and that he and his ancestors have been plying the ferry all along for the convenience of the public. He admits in his plaint that the defendant's ancestor 8k. Md. Asghar was also plying boats across the river at times, but that it was for his own convenience since he was the proprietor of the neighbouring village of Sipasurubili, (implying thereby that 8k, Md. Asghar was not plying boats for the public as such). The plaintiff has accordingly brought this suit for declaring his exclusive right to the ferry across the river in the village Naraainghpatna and for negativing any such right in the defendant and for a permanent injunction restraining the defendant from obstructing the plaintiff from the exercise of his right to the ferry. In the alternative he praya that hia independent right to ply the ferry may be declared even though the defendant may be proved to have a right. In the trial Court various other questions relating to the locus standi of the plaintiff to maintain the suit and objections based on limitation, estoppel, and a previous decision under Section 145, Criminal P. C., were all raised, but they were not agitated before the lower appellate Court nor are they reiterated by either party before us. Both the trial Court as well as the appellate Court found against the plaintiff on the question of his right to the ferry and have held that the defendant has made out a right to the ferry in question as a Crown grant and therefore to a monopoly for the exercise of this right of ferry at this place. In the lower appellate Court as appears from para. 6 of the judgment of the learned Judge, the ferry right of the defendant does not appear to have been any further assailed, but what was challenged was the alleged right to a monopoly in the exercise of the ferry right so as to prevent the plaintiff from setting up a riva'l ferry in exercise of his proprietary right in the bed and banks and ghats of the river. In this Court also the only question argued is as to the claim of the defendant to exercise his right to the ferry so as to prevent the plaintiff from setting up a rival ferry.

(2.) THOUGH both the Courts below have concurrently found as a fact the existence of thia right in favour of the defendant, we have heard full arguments, since the question whether on the facts proved, a Crown grant may be presumed so as to exclude the plaintiff from setting up a rival ferry is a question of law.

(3.) FROM the above narration of facts which may be gathered from the documentary evidence set out, there can be no reasonable doubt that the actual ferrying at this ghat across the river has been exercised by the Khandayet of Randha -ghar at least from the year 1833 right upto the date of suit with some interruption for a few years in the period from 1882 to 1898. For about 60 years or more prior to 1882, Kulamani Routray and his predecessors were exercising the right. For over 40 years from 1898, Md, Asghar and his successor have been exercising the right. There is no indication or suggestion that during these periods anybody else wag also exercising or claiming to exercise the right of ferrying at this ghat, side by side. The Mahant appears to have started the theory of joint right or a competitive right to ply also his own boats in the proceedings which led to the order under Section 144, Criminal P. C. in 1940 as evidenced by Ex. A. He reiterates the same position in his present plaint with the further modification that the defendant's right is confined to ply boats for his own convenience with reference to the ownership of his neighbouring village of Sipisurbali.