PANCHANON RAY Vs. FAZLUR RAHMAN CHAUDHURY

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a representative suit instituted under O. I, Rule 8, Civil P.C. The plaintiffs purport to sue on behalf of the inhabitants of four villages, and ask for a declaration of a right of boat passage and certain consequential reliefs. The right is claimed over a stretch of water which is described in the plaint as a baor, and which they say appertains to a zemindary mahal bearing touzi No. 399 of the Nadia Collectorate. There is a rough sketch given in the plaint, which shows that the baor is a semicircular channel, and skirts the plaintiffs villages on one side, and the defendants lands on the other. It has an outlet at two ends towards the south into a river called the Kapotakshi, which flows east to west, forming as it were a chord to the semi-circle. It is said that the western outlet has been silted up, so that the only communication with the river now is by the other opening at the eastern end.

(2.) The plaintiffs case is that this eastern end was recently obstructed by the defendants who put up a dam across the channel, first with a bamboo fence, and then with an iron netting, and that this had the effect of interfering with the right of boat passage which the plaintiffs and their co-villagers had been enjoying in this water-course from time immemorial. The defence is a complete denial of the right claimed. It is stated that the baor is the private property of the owners of the touzi which they have let out in putni, and that the defendants hold it as part of their mourashi mokarari tenure under the putnidars. They accordingly claim the right of exclusive user of the baor, and as since obtaining settlement they have thrown into it large quantities of spawn with a view to the rearing of fish, they maintain they are fully entitled to take all necessary protective measures to prevent the escape of fish into the river Kapotakshi. The defendants do not object to the plaintiffs using the water as riparian owners.

(3.) Both the Courts below dismissed the plaintiffs suit, except as to the right to use the water as aforesaid, which is decreed on the ground that it is not opposed by the defendants. Hence the present appeal. The right which is claimed in the suit is in essence a right of way, but no clear-cut or definite case is made in the plaint as to the basis of the claim or the mode of acquisition of the right. The right is variously described as an "easement of necessity," a "prescriptive easement," a "customary easement," an "easement acquired by user from time immemorial" and an "easement based on lost or implied grant." This is probably the reason why the Courts below say that reading the plaint, it is difficult to make out what the plaintiffs claim or do not claim. The substantial allegation is that the plaintiffs, meaning thereby the inhabitants of the villages concerned, have been enjoying the right "from time immemorial," "openly," "peaceably," "without interruption" and "as of right." As the Full Bench pointed out in the well-known case in Chuni Lall V/s. Ram Kishen ( 88) 15 Cal. 460 (F.B.), in India, as in England, there are three distinct classes of rights of way. First, there are private rights of way vested in particular individuals or in individual owners of particular tenements : these are easements proper, and commonly have their origin in grant or prescription. Secondly, there are rights belonging to certain classes of persons or certain portions of the public, such as the freemen of a city, the tenants of a manor; or the inhabitants of a parish or a village : such rights may be regarded as quasi-easements, and commonly have their origin in custom. Thirdly, there are public rights in the full sense of the term which exist for the benefit of the public at large, and the source of these, when not created by legislative enactment, is dedication.