DHANPAT PANDEY Vs. RAJA PASPUT PRATAP SINGH

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought by the Rajah of Bansi, plaintiff 1, and two of his lessees, plaintiffs 2 and 3, for a perpetual injunction, against 62 defendants, including the appellants in this Court, restraining them from interfering with the plaintiffs` right of ferry across the river Rapti within the boundary of village Ghai Ghat, pargana Bansi, in the Basti District.

(2.) The plaintiffs case is that plaintiff 1 has the exclusive right of ferry on the river Rapti in the Basti District, that in pargana Bansi within the boundary of village Ajgara he has a ferry at Tharwaria Ghat for passage of bullock carts, horses, cattle, foot-passengers, etc , across the aforesaid river, and that he has another ferry at Barwa Ghat for a similar purpose. The former is leased to plaintiff 2, and the latter is leased to plaintiff 3. The defendants are said to be proprietors of village Gai Ghat, through which the river Rapti passes at a point between Tharwaria Ghat and Berwa Ghat above referred to. It is alleged by the plaintiffs that for the convenience of the agricultural population of village Gai Ghat plaintiff 1 allowed the defendants to cross the river on a small boat free of any toll, a concession which has been enjoyed by the people of Gai Ghat for many a year; but that since October 1925 the defendants have been running a ferry of their own in village Gai Ghat at a place where land on either side of river Rapti belongs to them, which has materially affected the income accruing from the plaintiffs ferry at Tharwaria Ghat and Berwa Ghat already referred to.

(3.) The suit was resisted by the defendants, who alleged that their ferry in village Gai Ghat had bean in existence for over 60 years, and that in any case they were entitled to maintain a ferry of their own, the land on either side of the bank where they run their ferry being theirs. They denied the plaintiffs exclusive right of ferry on the river Rapti wherever it ran in the Basti District. The learned Subordinate Judge of Basti who tried the suit decreed it on the finding that plaintiff 1 was the owner of the ferry at Gai Ghat, namely, that which the defendants claimed to be theirs and which the plaintiffs desired to be discontinued except for the limited purpose they mentioned in their plaint. He further found that the ferry of Gai Ghat was started by the defendants recently, as alleged by the plaintiffs, and had not boon in existence as alleged by the defendants. On the last finding he held that the plaintiffs were entitled to restrain the defendants from maintaining a ferry at Gai Ghat. Though the decree passed by the learned Subordinate Judge is justified by the evidence he has not, in our opinion, approached the case from a correct standpoint. The plaintiffs did not claim that they had a ferry at Gai Ghat, and properly no question arose as to whether the ferry which the defendants claimed for themselves is "owned" by the plaintiffs. On the other hand, the plaintiffs case was that there was no such ferry and that the defendants had encroached on the right of plaintiff 1 to have ferries on the river Rapti to the exclusion of everybody else. In other words, the plaintiffs claim a monopoly in that respect.