BALGOBIND JHA Vs. LOKNATH JHA

JUDGEMENT

(1.) This is a second appeal from the decision of the Subordinate Judge of Darbhanga reversing the decision of the Munsif in a suit to establish a right of public way over the defendants private property. The Munsif who heard the evidence rightly pointed out that the evidence offered before him consisting of three doubtful witnesses in close association with the plaintiff was quite insufficient to establish that degree of proof which would have been sufficient to support either a right of the members of the public at large or a limited class such as the inhabitants of a particular village. In the case of either of these rights the customary period of user of the public right to the village path, a right which is sought to be established, must be proved by cogent evidence where the interests claimed conflict with those of a private owner. They must be proved by such degree of evidence as is representative of either the public at large or of the particular village or the smaller community alleged to have the right of user. To call three partisan witnesses who can in no sense be said to be representative of either the larger community of the general public or the smaller community of a particular village is no evidence whatever upon which a finding of public right or village custom can be found. The Subordinate Judge entirely overlooked the requirements of the law for this purpose and reversed the decision of the Munsif, holding that there was a public right of ueer of the defendants land. Not only is the judgment of the Subordinate Judge defective by not approaching the evidence from the right conception of the law, but it is an illustration of what is unfortunately so frequent, an almost capricious desire on the part of the Subordinate Judge to reverse the finding of fact by the Munsif who has seen the witnesses. The Courts of appeal should be most reluctant to reverse such findings of fact more especially when the lower Court has had an opportunity of seeing the witnesses and the case requires the; expression of opinion as to the credibility of the witnesses called.

(2.) In my opinion the judgment of the Subordinate Judge cannot be supported and I would therefore reverse his decision and restore the decision of the Munisiff dismissing the suit with costs, the defendants will be entitled to the costs in this Court. Kulwant Sahay, J.

(3.) I Iagree.