FIRM HAJI FAIZULLAH EBAD ULLAH Vs. BADRUZZAMAN

JUDGEMENT

(1.) This is an appeal by the plaintiff firm Haji Faizullah Ebadullah and arises out of a suit for demolition of certain constructions put up by the defendants first party, namely Badruzzaman and Muhammad Ayub, on a piece of land in village Kopaganj which the plaintiff described in the plaint as his "sehan darwaza" (courtyard), and for a perpetual injunction to those defendants restraining them from doing in future any act which may create any difficulty in the use of the courtyard by the plaintiff or which may bring about his dispossession. The allegations in the plaint are that the plaintiff is the owner of a house facing south, that in front of that house there is a chabutra and beyond that chabutra there is open land extending up to the public road, that this open land has been in possession of the plaintiff and its predecessors as the open space in front of their door ( sehan darwaza ), that in that house the business of commission agency and selling grain and sugar, etc. has been carried on for a long time, that the open land in front of the house has been used for the purposes of that business for a long time, and loaded carts bringing merchandise to the plaintiff's shop are unloaded on that land and goods are weighed and stored on it. It was further stated that by reason of that land remaining open, the chabutra and verandah of the plaintiff's house received sufficient light and air, and that the plaintiff's customers stayed on the land and that therefore the land, "besides its being in use from of old is very necessary for the plaintiff for carrying on the commission agency business". It was alleged that a day before the plaint was filed, the defendants, Badruzzaman and Muhammad Ayub, had started digging the foundations of a new building, and that this was an interference with the rights of the plaintiff. The defendants in their written statement, besides taking other pleas, also pleaded that the plaintiff had not distinctly shown in the plaint what right it had to the land in question. It was further alleged that the plaintiff's house formerly belonged to Ramsundar and others, Kurmis, that the plaintiff had purchased it in February 1916, and had subsequently built it anew. It was also pleaded that Rani Dhan Dei Kunwar was the zamindar of the entire qasba Kopaganj, that the defendants on payment of nazrana obtained the entire open land together with the trees from her and were putting up the constructions in suit with her permission. Subsequently the plaintiff amended the plaint by impleading Rani Dhan Dei Kunwar as defendant second party and by adding the following passage to para. 4 of its plaint: The plaintiffs rights are not such as may be liable to be interfered with by defendant second party or on the ground of her permission, by defendant first party or as may authorize the latter (defendants first party and second parties) to do any such act on the land in dispute as might affect the rights of the plaintiff and his previous use or as might deprive the plaintiff of its possession of any portion of the land in suit.

(2.) The trial Court framed three issues, the first two being: 1. Whether plaintiff has been in possession of the land in suit as his sehan and did the plaintiff and his predecessor carry on their business on this land? and, 2. Whether the constructions in suit affect the business of the plaintiff in any way?

(3.) The third was the general issue as to whether the plaintiff was entitled to any relief. It will be noticed that the plaintiff never alleged the acquisition of any easement in his pleadings, nor was the question clearly raised by the issues framed in the case. The learned Munsif took up Issues 1 and 2 together and in the course of his findings on these two issues he speaks of "dominant heritage" and "subservient heritage". He also speaks of "discontinuous easement". It appears that in the course of the trial arguments were advanced to the effect that the right claimed by the plaintiff was an easement. The learned Munsif decreed the suit. The defendants, Badruzzaman and Muhammad Ayub, appealed to the lower Appellate Court but their appeal was dismissed. They filed a second appeal in this Court and it came up for hearing before a learned single Judge. The point that was argued before the learned single Judge was that it being admitted by the plaintiff and the witnesses produced on behalf of the plaintiff that there was a cessation of the user of the land between the closing down of the business which the plaintiff's vendors were carrying on and the restarting of a business by the plaintiff after it had purchased the building from Ramsundar Das, etc. the plaintiff had not in law acquired the right of easement claimed. The learned single Judge remitted, the following two issues to the lower Appellate Court for findings: 1. Had the plaintiff's predecessor-in-title (the father of the vendor) acquired a right of easement in respect of the open space in dispute by 20 years uninterrupted user of the same? 2. Upon the death of the vendor's father was the business and the user of the land in connexion therewith discontinued by the vendor, and if so for how long?