LAXMINARAYAN Vs. FAJJULAL

JUDGEMENT

(1.) THE applicant with one other person brought a suit against the non-applicants for possession of a lane between his house and that of the defendants non-applicants, or in the alternative for a right of way as an easement over the lane. The trial Court framed an issue 4, whether plaintiffs can claim both the reliefs of ownership and easement in the alternative as claimed by them in this suit ?" The Judge treated that issue as a preliminary issue and recorded a finding to the effect that such inconsistent pleas could not be permitted and called on the plaintiffs to amend their plaint and to decide which relief they would claim. The plaintiffs were not satisfied with that order and have applied to this Court in revision.

(2.) IT appears that the plaintiffs do not really claim ownership over the lane and their case was that the lane was a nazul lane over which they had a right of way. An application had been made to the Deputy Commissioner under the Land Revenue Act for demarcation of the boundary, but the Deputy Commissioner by his order dated 22nd December 1930, of which a copy is on the record as Ex. P-1, has found that it cannot be said that the lane is a public lane and that the matter was one of encroachment, which should be decided by the civil Court. The plaintiffs therefore do not really set up any claim of ownership over the lane, but on the strength of that order they had to put forward a claim for possession, as their original contention that the lane was nazul has been negatived.

(3.) IT remains then to decide whether, in the circumstances, the applicant can sue for possession or in the alternative for an easement over the lane. The lower Court has held that these two 'pleas are absolutely inconsistent and, relying on Ramsingh v. Sitaram AIR 1931 Nag 57, which he wrongly quotes as A. I. R. 1931 Nag. 57, has held that a litigant should not be permitted to put forward such absolutely inconsistent pleas. It is true that, as a rule, a plaintiff should not be allowed to put forward contradictory pleas, but I am of opinion that the pleas of ownership and of easement, though inconsistent, are not contradictory and can be put forward in the alternative. This is the view taken in Narendra Nath Barari v. Abhoy Charan (1907) 34 Cal 51. The learned Judge of the trial Court is, I think, mistaken in saying that it was never laid down in the above Calcutta case that such a procedure could be permitted. In Amritanath Biswas v. Jogendra Chandra, , and in Behari Lal v. Asutosh Banerjee, , in which an alternative claim was permitted, and in Dwarka v. Ram Jatan, A. I. R. 1930 All. 877, which I think has been mistaken by the Judge of the lower Court, it was held that a plaintiff could not be allowed to take the impossible position of being the owner and of having a simultaneous right of easement over the same land, but that he may put forward such pleas in the alternative, and that, though such action should be condemned, the suit was not liable to be dismissed on that account.