HARISH CHANDRA SAHA Vs. HARISH CHANDRA CHUCKERBUTTY

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Panton in a suit for declaration and enforcement of a village pathway in village Backrabad ordinarily known as Earn Chandrapore.

(2.) The plaintiffs asked for declaration of a village path-way used by all the people of the village for certain specified purposes. The defendants contended that the alleged path-way was not a public highway but was a permissive foot track. Thereupon several issues were raised; the sixth was to the following effect: Did the lands of Schedule 2 of the plaint ever appertain to a public gopath as alleged in the plaint: Was there any public gopath over the lands of Schedule 1 of the plaint or any part of it? If so, what was its breadth and have the defendants encroached upon it in the way described in the plaint, namely, by the erection of fences seven years prior to the institution of the suit.

(3.) The Trial Court considered the evidence and came to the conclusion that the case alleged by the plaintiffs had been made out. In one passage of his judgment, the Munsiff states that "subject to some difference between the parties as to the breadth of the gopath it is an admitted fact that the existence of the gopath is admitted, subject only to the dispute as to the right of passage of men with ploughs etc., over the bari of the defendant No. 1 and the other defendants." The Munsiff then considered the evidence and held that the existence of the village path was established. He next discussed the question of the width of the gopath and summarised his conclusion in these terms: "It is no doubt a gopath used by the men of the locality and they have the right to pass with plough, cattle bundles, processions and with dead bodies." In the concluding portion of his judgment he directed the suit to be decreed in a modified way and declared the public right of gopath in the suit land.