LALIT MOHAN SAHA Vs. DEBENDRA NATH THAKUR

JUDGEMENT

(1.) The plaintiffs in the suit in which this appeal has arisen, suing as representatives of the public under Order 1, Rule 8, Civil P. C., prayed for possession of what was mentioned as a public Halot, on removal of obstruction therefrom and for permanent injunction. The case of the plaintiffs was that the Halot described in the plaint and which was the subject of the litigation was a public pathway in dry season and a public boat passage in the rainy season, that the defendants had in collusion with one another totally obstructed the boat passage and made the same unfit for use as a pathway in dry season, and that the public had been inconvenienced by the obstruction thus caused. Defendant 1 was the President of the Bhagyakul Union Board, and represented the Board as such, and he supported defendants 2, 3 and 4, who filed written statements and pleaded that earth was raised on the part of the Halot mentioned in the plaint, in accordance with the resolution of the Union Board passed on the application of the defendants for the improvement of the Halot. The fact that boat passage of the public through the Halot was discontinued, as asserted by the plaintiffs, was not controverted. The case of the defendants was that the members of the public could use the Halot as a pathway in dry season, that so far as passage of boats were concerned, boats could easily pass through the northern portion of the Halot in question. According to the defendants the suit was not maintainable inasmuch as the action of the Union Board, which was sought to be challenged, was legal and bona fide in the discharge of their duties.

(2.) As it would appear from the judgment of the trial Court, defendants 1 to 4 admitted the Halot in suit to be a public Halot; it was further admitted that the boat passage had been totally obstructed by the raising of earth in front of the baris of defendants 2 to 6. The Halot, before the obstruction complained of was used as a footpath during the dry season and as a boat passage in the rainy season, by the public. The Munsif noticed the position, which was beyond the pale of controversy, that in the part of the country in which the Halot in question was situate, most of the big Halots were used as boat passages in the rainy season; and has observed that the power of the Union Board to improve the public Halot used both as pathway and boat passage by the public, consistently with its user could be denied. It has to be noticed that according to the learned Munsif the disputed Halot was a waterway in the rainy season, and public pathway during the dry season, and that the action of the Union Board was not legal and bona fide. The trial Court, on the conclusions arrived at by it, on the interpretation of the provisions of the Village Self Government Act, 1919, and on the materials placed on record, passed a decree in favour of the plaintiffs. The plaintiffs were held entitled to get possession of the disputed Halot after removal of all obstructions therefrom. The Halot in suit was declared to be a public Halot for footpath during dry season and for waterway in the rainy reason for all purposes as alleged in the plaint.

(3.) On appeal by the contesting defendants the decree of the trial Court was affirmed by the learned Subordinate Judge in the Court of appeal below. On the evidence in the case, the Court of appeal below held that at least for three months in a year the Halot was used as a boat passage. The user was from time immemorial, and the plaintiffs and the public had acquired a right to use the Halot as a boat passage during the rainy season. The finding on evidence, arrived at by the lower appellate Court, was also to the effect that the boat passage would entirely disappear by the raising of the Halot in the manner mentioned in the plaint. The Subordinate Judge has referred to acquisition of easement by the plaintiffs and of giving up of that right, so far as the user of the Halot as a boat passage was concerned; and gave his decision that the Union Board had no power to close the waterway. In the concluding part of the judgment, the Subordinate Judge has held that S.31, Village Self-Government Act, did not apply to the Halot in suit, inasmuch as the Halot was the private property of the plaintiffs and some of the defendants.