APTABUDDIN KHAN Vs. JOHAR ALI KAZI

JUDGEMENT

(1.) This is an appeal by two of the defendants, and arises out of a suit brought by the plaintiffs on their own behalf and on behalf of the other inhabitants of a village called Piparia, for a declaration that a certain strip of land forms part of the village gopat, for an order on the defendants to fill up a tank that they have excavated in such a way as to block the gopat, and for certain other reliefs. The strip of land in suit lies to the west and north of the defendants charabari, and according to the defendants case, it forms part of their charabari, while according to the plaintiff's it is the zemindar's khas land and forms part of a village gopat that has existed and has been used by them from time immemorial.

(2.) It is undisputed that a village gopat runs from south to north through the part of the village to the south of the defendants charabari, and also that a similar gopat runs from south to north through the part of the village to the north thereof. The plaintiffs contention was and is that these two gopats were really one and the same gopat, and that the land in suit was the portion of the gopat connecting the northern and southern portions. The defendants case was, inter alia, that the people of the village had at most a customary right to pass across the defendants charabari, but not by any defined path, from its south-western corner where the southern gopat ended, to its north-eastern corner where the northern gopat began and that the tank had been dug and the path diverted with the consent of all the villagers concerned, including the plaintiffs themselves.

(3.) The trial Court dismissed the suit, but the lower appellate Court decreed it, and one of the principal grounds of appeal that has been urged before this. Court is that the lower appellate Court did not reverse some of the findings on the strength of which the trial Court had dismissed the suit, and in some cases did not even refer to the points to which those findings related. There is in my opinion, no substance in this contention, for the findings of the lower appellate Court appear to me to be conclusive, and are such as to render the consideration of those of the trial Court's findings to which no reference has been made quite necessary. The lower appellate Court has found, on a consideration of all the evidence that has been adduced on both sides, including the Settlement Records and the records of the Butwara proceedings: (1) That the land in suit is a village gopat and not part of the defendants raiyati. (2) That for a long time-(by which is evidently meant from time immemorial, to use the legal phrase),-there had been a village gopat over the land in suit connecting the northern and the southern gopats. (3) That the defendants gradually encroached on and finally appropriated the land in suit; and (4) that the villagers never gave their consent to the old gopat over the land in suit being closed, and a new path opened up. These are findings of fact which cannot be questioned on second appeal and they are, as has already been stated, conclusive.