DURGA RAM DAS Vs. BHARAT RAM DAS

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and is confined to a strip of land which is described as plot No. 1 in the proceedings, with regard to which the suit has been dismissed by both the Courts below.

(2.) The plaintiff's case as laid in the plaint shortly stated and so far as is necessary for our present purposes was this: that the plaintiff was residing in his bari to the west of the plot from the time of his ancestors, that he and the defendants (Nos. 1, 5 and 6 being his brothers and Nos. 2, 3 and 4 being the sons of No. 1) and their ancestors had used the said plot as a pathway for over 100 years for going to their lands with ploughs, loads, cattle, palanquain and corpses, openly, peacefully and as of right all the time, that of late he has "removed to his new bari and thereafter also used the plot as a pathway, till the principal defend ants put up an obstruction thereon. The prayer of the plaintiff was for a declaration of plaintiff's right of way and for recovering possession of it as a way after removing the obstruction.

(3.) As to the defence of the principal defendants as set forth in their written statement, paragraphs 4 and 5 are important. The averments therein are to the effect that Upendra Ghose and his brother are the malilcs of the middle part of plot No. 1, and the plot is a part of the defendant's bari and yard. These defences were somewhat varied in the course of the proceedings before the Trial Court. The learned Munsif, however, found; (a) that Upendra, Ghose and his brother had no connection with plot No. J; (b) that though the plaintiff and his son said that plot No. 1 belonged to Government, that plot belonged to the four brothers meaning the plaintiff and the defendants Nos. 1, 5 and 6 and they had acquired title to it by adverse possession. He held ultimately that the plaintiff was not entitled to any relief on the grounds, (1) that the plaintiff being the joint owner of the plot along with his brothers was not entitled so far as he claimed a right of way on the ground of prescription, as no man can acquire easement in a tenement of which he himself is the owner, (2) even if the plaintiff and his brothers are not the owners of the plot the servient owner not having been made a party, the plaintiff was not entitled to any relief.