RAMCHANDRA BARIK Vs. DIBAKAR DAS

JUDGEMENT

(1.) This second appeal is by the plaintiffs and arises out of a suit, in which it was claimed that the residents of Jankhrai and other villages in the vicinity of Jankhrai had a right of way across a strip of land belonging to the defendant. The defendant has rights of occupancy in two paddy fields in Jankhrai. Between these two paddy fields is a ridge about two feet broad, and it was claimed that the villagers of Jankhrai and other persons residing in the locality had a right of way along this ridge.

(2.) Until recently, one of the two paddy fields was in the occupation of another person. The defendant took a conveyance of this parcel of land, and proceeded to amalgamate it with the other parcel, which had belonged to him previously. He seems to have put up some kind of fence round the whole of the land in order to prevent cattle from damaging his paddy. Subsequently, he, also, seems to have demolished the ridge between the two parcels. In the plaint, it was asserted that the right, which was claimed, was a right in the nature of an easement and arose out of necessity, as, if persons residing in this locality were not permitted to go along this strip of land, they could not reach the Grand Trunk Road or the river Hulhulia. The learned Munsif was satisfied that there were other routes, by which these two objectives could be reached.

(3.) Nevertheless, the learned Munsif decreed the suit on the assumption that the right claimed was a right in the nature of an easement and had been acquired by prescription. This decision was reversed, on appeal, by the learned Subordinate Judge. It is quite clear that the right claimed, if it exists, is a right in gross and not an easement, as it is enjoyed independently and not for the beneficial enjoyment of any land belonging to the persons who claim it. Apparently, this was recognized before the appeal came on for hearing, and, in the lower appellate Court, it was asserted that the right was founded on custom.