SURENDRA NATH SAHA Vs. HARENDRA KUMAR SAHA

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the Subordinate Judge, First Court of Faridpur which affirmed the decree of the Munsif, First Court of Goalundo. Four persons instituted the suit for declaration that the portion of the Khal, which is the subject- matter of the suit is a part of a public water passage and for injunction to restrain the defendants from obstructing the same. The suit was instituted by the said persons on behalf of the public. They applied for and were given the permission to sue on behalf of the public under the provisions of Order 1, Rule 8,. Civil P.C.

(2.) It is admitted that the Khal flows in a westerly direction from the Pachuria River, a tributary of the River Padma, passes over Dag No. 321, which belongs to the Secretary of State, then over Dag No. 303, which belongs to the contesting defendant, then over Dag No. 299 which belongs to one Sorojendra Shaha, and goes to a long distance towards the west. The plaintiffs case is that it extends many miles towards the west and terminates in a Beel called the Singer Beel. The water course over Dag Nos. 321 and 303 is the subject matter of the suit as the obstruction has been placed in Dag No. 303. The Commissioner who was appointed for local investigation has not shown on his map the course of the whole khal. He has shown that it takes its rise from the Pachuria River, admittedly a public channel, near Dag No. 321, passes over the defendants lands (Dag Nos. 321 and 303) and that it extends further westward. He has shown its course to about four miles further west of the defendants lands but has not shown on his map either the Singer Beel or the course of the khal thereto, possibly because none of the parties desired him to go further down. In the Record of Rights prepared under Ch. 10, of the Bengal Act and finally published about 20 years before the suit Dags Nos. 303 and 321 have been recorded in the ownership of the contesting defendant and the Secretary of State respectively, but in respect of both of them the record is that the members of the public have a right of boat-passage. This record has remained unchallenged and the Secretary of State who has been made a defendant also does not contest the plaintiffs claim. The existence of the khal for over 40 years is admitted by the contesting defendant- appellant, but his case is that the disputed portion of the khal is a private water-passage belonging to him, primarily intended for access to his Hat known as the Pachuria Hat which is on a part of Dag No. 303 and adjoining plots, and that boats that passed over Dag No. 303 had to pay to him and his Ijardars tolls for passage. Both the Courts below however on a detailed examination of the evidence have come to the conclusion that members of the public have been using the whole of the khal as of right for a very long period, and that the contesting defendant's case about the collection of tolls is false. The learned Subordinate Judge has placed reliance mainly on the following facts: (i) Entry in the Record of Rights, recording Dag No. 303 as a part of a public highway, (ii) user by the public for a long time, (iii) falsity of the defendant's case as to the levy of tolls, !iv) findings in a judgment of competent jurisdiction in a suit instituted on behalf of the public against the contesting defendant for establishment of a public highway over Dag No. 302 belonging to the defendant, (v) the terminus of the khal in the east in a public highway, e.g., the Pachuria River and (vi) the length of the khal, it is a long one which passes over the defendant's land, and goes beyond to the west to a length of 3 or 4 miles at least.

(3.) He has come to the conclusion that there was an intention to dedicate Nag No. 303 as a public passage and that it was so dedicated. Other contentions raised by the contesting defendant, one of them being that the suit was not maintainable as no special damage has been alleged or proved by the plaintiffs, have been negatived by the learned Subordinate Judge, and nothing has been said before me with regard to them. The only point that the defendant-appellant urges before me is that the learned Subordinate Judge has erred in law in inferring an intention to dedicate, inasmuch as it has not been proved that the khal terminates at a public place on the west. Put shortly his contention is that as a public right of way means a right to the public of passing from one public place to another public place, there is no scope in law for inferring an intention on the part of the owner of the land to dedicate it as a public highway, when it is not proved that both the terminii are public places. In support of this contention reliance has been placed on certain observations of Kay, J., in Bourke V/s. Davis (1890) 44 Ch D 110 at p. 121 and of Lord Dunedin in Folkstone Corporation V/s. Brockman (1914) AC 338 at p. 375. Reliance has also been placed on three passages to be found at pp. 235, 238 and 241 in Peacock on Easements.