NARENDRA NATH BARARI Vs. ABHOY CHARAN CHATTOPADHYA

JUDGEMENT

(1.) The subject-matter of this litigation is a ditch lying between the homestead of the plaintiffs and the defendants. This ditch has been obstructed by the defendants, and the plaintiffs ask for a declaration that the ditch belongs to them, or in the alternative, that they have acquired a right of easement therein for the passage of their boats.

(2.) The Munsiff, who tried the suit, found that part of the ditch belonged to the plaintiffs and that over the remainder "they had acquired a right of easement, and he passed a decree in accordance with the findings. The Subordinate Judge on appeal by the defendants considered that the alternative claims made by the plaintiffs were inconsistent, for they could not claim a right of easement over the land in respect of which they alleged that they had a proprietary right. He was of opinion that the suit framed in this way is not maintainable and he accordingly dismissed it.

(3.) The view taken by the Subordinate Judge is in accordance with the decision of this Court in Bijoy Keshub Roy V/s. Obhoy Churn Ghose (1871) 16 W.R. 198. The subject-matter of that suit was the right to hold a hat partly on land and partly on water and the plaintiff alleged "first his proprietary right in the bank of the khal on and opposite to which the hat is held, and secondly, his right by prescription to hold the hat there." The Court held that this was a case, which was in itself double and inconsistent and on this ground they dismissed the suit.