DWARKA NATH SEN Vs. TARA PRASSANNO SEN

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff, the appellant before us, to establish his right of way over certain land and to obtain the removal of certain alleged obstructions to that way for which the principal defendants are said to be responsible. The parties are co-sharers of the homestead in respect of which the question arises. The plaintiff's house is on the north of the inner courtyard. The house of Tara Prasanno Sen, the original defendant No. 1, is on the east and the house of Surendra Chandra Sen, the original defendant No. 2, is on the south. The plaintiff's case is, that from this inner courtyard two ways or passages lead in an easterly or southeasterly direction towards he plaintiff's Bahirbari and the public road. The facts are stated in the judgment of the learned District Judge as follows:--"In the year 1303 the appellant's father (that is, the father of the defendant No. 1) commenced the erection of the mud-walled house marked I in the sketch attached to the plaint. Then the trouble began. The present plaintiff's brothers sued the appellant's father by a suit instituted, in the year 1898, alleging that in the crection of this house, the latter had encroached on. two paths leading from the inner courtyard of the homestead lying west of this house to the Bahirbari of the plaintiff. One of these paths is the one to which the present Appeal No. 95 relates and. passes by the south of the house marked 1 (that is, the house of the defendant No. 1). The other, according to the plaint, in the suit of 1898, was alleged to have been built over in the erection of house No. 1. The then plaintiffs prayed for a declaration of their right to use these paths and for an order for the removal of the obstructions. The Munsif who tried the suit found that the paths had existed as alleged and he ordered the removal of the northern wall of the mud-walled houses. The matter was taken up on appeal and the Subordinate Judge who heard the appeal found that as a space practically three cubits wide lay to the north of house No. 1 and would; meet the needs of the then plaintiffs, the under directing removal of the northern wall was not necessary. The execution of that decree was contested and the matter went up to the High Court on appeal. In the meanwhile, other litigation bad commenced between the parties, and at the instance of friends the disputes between the persons interested in the homestead were amicably settled. A deed embodying the terms of the settlement was executed on the 7 Kartic 1309 and was registered and, in consequence, the appeal that was pending in the High Court was withdrawn, Further on, the learned District Judge continues:--"The southern path is said to have been encroached on in the year 1312 by the erection of a Verandah to the west and south of house No. 1 by the appellant and by the erection of a Verandah to the east of house No. 3 (that is the bouse of the original defendant No. 2) by defendants Nos. 2 to 5. These latter defendants have not contested the suit and have not contested the decree. The learned [Munsif has ordered the removal of those portions of the three Verandahs above referred to which obstruct the southern path."

(2.) Then the learned District Judge, as I understand his judgment, goes on to accept and adopt the finding of the Munsif that the obstruction of the southern path dates from Baisakh 1312, or April 1905, which would be more than six years but less than 12 years before the present suit was instituted on the 4 October 1-912.

(3.) The only question with which we are concerned is the question of limitation The learned Munsif had held that the case was governed by Art. 144 of 1316 Schedule to the Limitation Act. The learned District Judge was of opinion that there was "no special provision in the Schedule to the Limitation Act for suits such as the present." He concluded, therefore, that Art. 120 would apply, that accordingly the period of limitation was six years and that the suit was out of time. On that ground he reversed the Munsif's decree in favour of the plaintiff, and dismissed the suit.