KEDARUDDIN AHMAD Vs. ASRAFALI

JUDGEMENT

(1.) This appeal is on behalf of some of the defendants who are members of Kalikacha Union Board, and the suit out of which it arises was commenced by the plaintiff for establishment of easement rights of a boat passage and a passage for outlet of water over the disputed strip of land which is described in Sch. 1 of the plaint. There was also a prayer for removal of obstruction which was alleged to be placed on the disputed land by the members of the Kalikachha Union Board in collusion with the other defendants in the suit. The plaintiff is admittedly a fractional owner of a tank which is C.S. Dag No. 3396. There is a jan or outlet for surplus water of this tank at its south west corner which runs southward and meets the khal in C.S. Dag No. 3382. It is said that the plaintiff and his predecessors had been from time immemorial, using this jan as an outlet for the water of the tank as well as a boat passage for coming from the khal to his land and homestead, continuously, peaceably, openly, as of right and as an easement, and thereby acquired the aforesaid easement rights both under prescription as well as by grant. In the latter part of Chaitra 1338, the members of the Union Board, it is alleged, in concert with the other defendants had filled up the jan with earth and thus obstructed the outlet and the boat passage. A large number of pleas were taken by the contesting defendants who are defendants 1, 2, 12 and 13. The material contentions raised were that the suit was bad for nonjoinder of necessary parties and for want of notice under Section 64 of the Village Self-Government Act, that the action of the Union Board was bona fide and was protected, under Section 63, Village Self-Government Act, that the plaintiff himself being a part proprietor of a portion of the servient tenement could not acquire any rights by prescription or grant, and that the plaintiff's suit was barred by estoppel.

(2.) The trial Court dismissed the suit. It held inter alia that the suit was not bad for non- joinder of parties or for want of notice under Section 64, Village Self-Government Act, and that Section 63 of the Act did not afford any protection to the defendants. The question of estoppel was also decided in favour of the plaintiff, but the Munsif dismissed the suit, on the ground that the plaintiff being a part proprietor of Dag No. 3398, over which a portion of the jan lay, could not acquire any right by prescription, nor was any right by grant established in this case. He held further that Dag No. 3387 was a public way, and as such no right by prescription could be acquired with regard to the same. Against this decision there was an appeal taken by the plaintiff to the lower appellate Court and the Court of appeal below has reversed the judgment of the trial Judge and has given the plaintiff a decree. The learned Subordinate Judge concurred with the Munsif in holding that the plaintiff could not acquire any right by prescription, but he held that a right by grant from the co-sharers of the plaintiff could be implied in the case, and as C.S. Dag No. 3387 was not found to be a public way, there was nothing in law which stood in the way of the plaintiff's getting a decree in this case. He has given the plaintiff a, declaration of his title to the extent of four annas and odd gandas share in C.S. Dag No. 3398, and as to the balance of the said dag and the remaining portion of the schedule land, the plaintiff was held to have acquired easement rights as claimed by him in the plaint and the defendants were directed to remove the obstruction within one month from the date of the decree. It is against this decree that the present appeal has been preferred and Mr. Upendra Kumar Boy, who appears for the appellants has raised before me several points, including those upon which the decision of the trial Court was against his clients. I will proceed to discuss these points in their proper order.

(3.) Mr. Roy's first contention is that the suit is bad for non-service of notice under Section 64, Village Self-Government Act. The Courts below have negatived this contention on the ground that the suit being not one for damages, but for establishment of easement right, does not come within the purview of Section 64, Village Self. Government Act. Section 64 prohibits all suits or legal proceedings without notice, against the Union Board, or its members, officers, etc., for anything done under the Act; and Sub-clause 3 provides that if on receipt of notice the Union Board or its members, tender sufficient amends to the plaintiff, such, plaintiff shall not recover. This section is a reproduction of the provision of Section 363, Bengal Municipal Act of 1884, which itself was a repetition of Section 87 of the earlier Act 3 of 1864. It has been held in a long series of decisions of this Court that the suits contemplated by such provisions are those where the plaintiff claims damages or compensation for some wrongful act committed by the corporate body or their officers in the exercise or honestly supposed exercise of their statutory powers. In the Full Bench case in Chunder Sikhur V/s. Obhoy Churn (1881) 6 Cal 8 (F B) which is the leading authority on the point, Garth, C.J. pointed out with reference to Section 87 of Act 3 of 1864 that: It could not have been the intention of the Legislature to allow the Commissioners (even by mistake) to appropriate the lands of private persona without paying for them and to hold these lands for ever against the true owners unless the latter should happen to be sufficiently watchful to discover the aggression in time to take steps to protect their property within so short a period as two months.