SALINA JITENDRA LAL SINHA Vs. RAM CHARAN GOPE

JUDGEMENT

(1.) In the suit which is the subject matter of this appeal the plaintiffs claimed that there is a footpath used by the villagers of Jarudih over the area comprised of plots 192, 194, and 191 which had been purchased by the defendants from Subodh Kumar Mukherji and over which the defendant has been constructing a building. The case of the plaintiffs was that they were residents of village Jharudih and that they have a right of way over the path in question which connected the village road running through the bustee of Tharudih and connecting with a pucca District Board road known as Luby Circular Road. According to the plaintiffs the pathway was adjacent west to the north of plot No. 3222 and also adjacent south of plots 193, 195 and 200 of mauza Hirapur and that the path was 9 feet wide. The suit was contested by the defendant who alleged that the plaintiffs had no customary right of way and that she had purchased the land from Sri Mukherji for the purpose of constructing a girls school and that the building has already been partly erected. The trial court dismissed the suit on the ground that there was no proof of customary right established by the plaintiffs. The trial court also discussed the question of the existence of the footpath and after considering the evidence of the Municipal Commissioner that the footpath was only 1 foot wide and also the evidence of other witnesses came to the finding that there was evidence that there was a footpath on the disputed land since long before the purchase by the defendant and that the footpath was of a very narrow width. The lower appellate court, affirmed the finding of the trial court with regard to the existence of the footpath and further found that the plaintiffs' customary right over the pathway was established and, therefore, they were entitled to a decree declaring that they had established a customary right over the pathway in question.

(2.) In support of this appeal the argument put forward by the learned Government Advocate is that there is no material in the case to support the finding of the lower appellate court that there was proof of customary right of passage over the disputed land. In our opinion the argument on behalf of the appellant is well founded and must prevail. In the first place there is the important fact that though the plaintiffs claimed that there was a path 9 feet wide over the disputed land, the evidence of the Municipal Commissioner, D.W. 2 is that the path was only 1 foot wide and that evidence has been accepted by the trial court, and the lower appellate court has not reversed that finding with regard to the dimensions of the path. The trial court found that the pathway was used not as a matter of right and the defendant had no knowledge of the use of the pathway by the villagers. The lower appellate court has also affirmed the finding of the trial court that the defendant did not know of the existence of the pathway nor did he know the use of the pathway by the villagers. Neverthless the lower appellate court reversed the finding of the trial court and came to the conclusion that there was a user of the passage as of right and in this connection referred to the circumstances that the land was not cultivated by the defendant and so there must be a presumption that the passage was used by the neighbouring villagers as a matter of right. The relevant passage from the judgment of the lower appellate court is reproduced below :

(3.) There is also another important circumstance which the lower appellate court has failed to notice in reaching the finding with regard to the customary right. It is admitted that in the survey record or rights there is no mention of the customary right over the disputed land. It is not the case of the plaintiffs that the customary right grew up after the publication of the record of rights; on the contrary the case in the plaint was that the customary right was in existence from time immemorial; and if that was true, there is no reason why the right was not entered in the Survey record of rights. Reference was made in this connection on behalf of the appellant to Section 81 Clause (1) and Section 81, Clause (n) of the Chota Nagpur Tenancy Act which imposes a duty on the survey authorities to record any easement attaching to the land for which the record of rights has been prepared and also the existence, nature and extent, of the right of any person in the area to which the record of rights applies. The omission of the right claimed by the plaintiff in the Survey record of rights is, therefore, a relevant matter for consideration in examining the evidence with regard to the customary right claimed by the plaintiffs. As pointed out by the Privy Council in Lakshmidhar Misra v. Rangalal, ILR 29 Pat 1 : (AIR 1950 PC 56), the question of customary right is not a question of fact but is essentially a mixed question of fact and law; and in the present case, having examined the judgments of both the lower courts we are satisfied that the plaintiffs have not established that there is a customary right over the pathway in dispute and the user of the pathway was a user by the plaintiffs as a matter of right.