MAMIN KHAN Vs. MOIZUDDIN KHAN

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the Subordinate Judge, Third Court of Mymen singh, affirming the decision of the Munsif, Second Court of Netrokona. The suit was for declaration of a right of way brought by the plaintiffs for themselves and for the general public of the village on the allegation that the plaintiffs as well as the villagers had used the land in dispute as a pathway for their daily necessary purposes for over hundred years from generation to generation with their cattle openly, peacefully, without dispute and as of right. They, however, described the a pathway as a gorat starting from a different village and leading to another over the disputed land.

(2.) The Trial Court found that there was a pathway. The Munsif says "I have no doubt on the evidence on the record that before the alleged obstruction the plaintiffs and people having homestead nearby had used the disputed land for various purposes, for an indefinite length of time without any obstruction. Defendant No. 1 had admitted that the plaintiff No. 1 and others pass on the disputed land when necessary to go from one homestead to another. Hence I find that the plaintiffs had been in uninterrupted enjoyment of the disputed land over 20 years." He, however, dismissed the suit on the ground that according to his finding the plaintiffs had used the land not as of right but by sufferance only. It is difficult to understand what he meant by the word "sufferance" because easements by prescription are acquired only by sufferance of the dominant owner. The plaintiffs appealed from that decree. The, Subordinate Judge affirmed the finding of the Munsif as regards the user of the disputed land as a pathway by the plaintiffs and two or three villagers. It was also found by the Subordinate Judge affirming the decision of the Munsif that this was not a gorat but that this pathway over the disputed land was a continuation of the gorat and the plaintiffs and two or three villagers used to pass over it with their cattle. This was also admitted by the defendants witness No. 1 who said that the plaintiffs had a pathway to go to the gorat with their cattle over the disputed land. The Subordinate Judge next considered the finding of the Munsif as to whether the plaintiffs had been able to prove that the pathway was used as of right, and having taken into consideration all the facts which were placed before him for the purpose of establishing that the user was permissive he comes to this definite conclusion that the plaintiffs user was as of right and not of a permissive nature. On this finding one would suppose that he would pass a decree in favour of the plaintiffs but instead of doing so he dismissed the suit on the ground that the plaintiffs having brought their suit on the allegation that they as well as the inhabitants of the village had the right of user over the disputed land as a way and they having failed to establish the right of user of all the villagers the suit ought to fail even if the plaintiffs had proved that they had the right of user as clamed by them. We do not consider that the, proposition enunciated by the Subordinate Judge is right. If a plaintiff comes into Court and says that he as well as other persons have acquired a right of easement over a certain land, and does not succeed in proving that the other persons had such right, there is nothing to prevent him from, succeeding in his claim if he can prove that he has used the land in. the way required by law for the purpose of acquisition of a right of easement. It has, however, been contended on behalf of the defendants-respondents that the land over which the right of way has been claimed is not defined and the findings of the Courts below are not definite as to the land over which the right of way has been found. From the passages I have cited from, the judgment of the Munsif as well as of the Subordinate Judge it is quite clear, that both the Courts found that the pathway was over the whole of the disputed land and we find that the disputed land has been depicted in the map of the Commissioner who was deputed for the purpose of holding a local enquiry in the case. It cannot, therefore, be urged that the pathway claimed is in any way indefinite. On these grounds the decision of the Subordinate Judge is set aside and the plaintiffs suit decreed declaring that the plaintiffs have a right of way over the dispute land (shown in the commissioner's map)as claimed by them as an easement.

(3.) The plaintiffs are entitled to their costs in all the Courts.