DAKSHINA RANJAN CHOUDHURY Vs. SURENDRA LAL DAS GUPTA

JUDGEMENT

(1.) This appeal is on behalf of the defendant, and is directed against an order of the Addl. Subordinate Judge of Chittagong, dated 18 June 1934, by which he reversed the judgment and decree of the Munsif, First Court, Chittagong, and remanded the case to the trial Court. The judgment is not very clear and the ordinary portion is ambiguous.

(2.) One Uma Charan Choudhury and others were the owners of a long strip of land which is described as Dag 792. He divided this Dag into three portions, the eastern portion, middle portion and the western portion. On 27 April 1911 he sold the eastern portion to Tara Charan and Jogendra. The plaintiff purchased it from Tara Charan and Jogendra. The middle portion was sold to the defendant and the western one to one Ishan. There are measurements given in all these three conveyances, it being stated that the breadth of each of these parcels of land is eighteen cubits and four fingers. The defendant constructed his house and to the east of his house there is admittedly a pucca drain belonging to the defendant. The disputed land is a small strip of land north to south in length to the immediate east of this drain. The plaintiff filed the suit on the allegation that this strip of land appertained to the land which was sold by Uma Charan and others to his vendors Tara Charan and Jogendra. He asked for a declaration of title to this piece of land, for confirmation of possession therein for a declaration that the defendant had no right of way over it, and for a permanent injunction restraining him from entering upon the land.

(3.) The defendant pleaded that the suit land appertained to the parcel of land which was sold to him by Uma Charan and others. He put forth an alternative plea that if the suit land or a portion of it did not belong to him, he got a right of way over it, and this right he claimed on three grounds. Firstly he says that it is a way of necessity, secondly he has acquired the right by prescription, and thirdly there was an implied grant to him by Uma Charan and others, the common vendors of himself and of the vendors of plaintiff. There was a Commissioner appointed for a local investigation by the Munsif and he submitted a report. The learned Munsiff could not agree with all the findings of the Commissioner but found that the strip of land 2 . 10" broad immediately to the east of defendant's pucca drain, belonged to defendant, and the rest of the suit land belonged to the plaintiff. On the alternative defence he found that the defendant had established a right of way over the portion of the suit land belonging to the plaintiff.