SHEO PRASAD SONAR Vs. MANGAR MANITAR

JUDGEMENT

(1.) The parties to the suit are neighbours. The plaintiff is the owner of a well marked yellow on the plan filed with the plaint. He also claimed to be the owner of a plot of land marked X. The defendants own a house adjacent to the well. According to the plaintiff they (the defendants) had recently opened a door at the point marked L in the said plan in wall belonging to themselves and are now using that door for entering upon the platform of the well and the land X, and use it for going to a dalan belonging to them shown to the right of the line B in the plan attached to the plaint. The plaintiff also complained of certain beams which have been put on the wall but as to which there is no controversy now. The plaintiff sues for an injunction directing the defendants to close he door L and a further injunction to restrain the defendant s dalan. The suit has been thrown out by the Court below on the ground that the door was opened nine years ago and the plaintiff not having sued for the injunction asked for within six year from the date of the opening of the said door his suit is barred by Article 120 of he first Schedule to the Limitation Act. The plaintiff has appealed against the said decree. Mr. Jang Bahadur Lal in appeal has given up the claim in so far as the closing up of the door L is concerned; the wall in which the door is opened being the defendants they were at liberty to make as may openings they liked. But he has pressed the claim for the injunction restraining the defendants from stepping on to the platform of the well and using it as passage to the dalan and has argued that the case is one of a recurring cause of action under Section 23 of the Limitation Act and that so long as the defendants do not acquire a right of easement in accordance with law, he is entitled to sue for an injunction.

(2.) I think the contention of the appellant is perfectly correct. All that has been found is that the door was opened nine years ago and assuming that for the first time the defendants walked through it on to the platform of the well, that was an act of trespass which came to an end when they walked back to the house. Each time the defendants trespassed upon the plaintiff s land they were committing a fresh act of trespass and on each occasion a new cause of action arose to the plaintiff to restrain the trespass complained of. A similar point came up in a case Ramphul Sahoc v. Misree Loll 24 W.R. 97 under the provisions of Act XIV of 1859 and the learned Judge of the Calcutta High Court who delivered the judgment in that case at page 98 thus laid down the law: But I do not think that this is a correct view of the law of limitation as applicable to this case. If the plaintiff has been dispossessed from any portion of his land by an adverse possession having been taken by the defendant, the case would then fall within Clause 12; but if, on the other hand, no adverse possession has been taken by the defendant, then each act of trespass on the plaintiff s land would constitute a fresh cause of action, and whether the period be six years or twelve years, the plaintiff would be competent to rely upon the last act of trespass as constituting a cause of action; unless the defendant had acquired an indefeasible right of easement by user. I am of opinion, therefore, that the reasons assigned by the lower Court for holding that the plaintiff s claim is barred by limitation are erroneous." In this case the plaintiff is entitled to base his suit upon any act of trespass by the defendants committed within six years of the date of the institution of the suit. If the view taken by the Court below were correct, the result would be that a man would acquire an easement to walk over another person s land in six years instead of in twenty years, the period prescribed by law.

(3.) I set aside the decree of the Court below and direct that Court to re-admit the appeal to its list of pending appeals and to hear and dispose of it according to law. The appellant will have his costs of this appeal including Counsel s fee on the higher scale.