BEJOY CHANDRA NAG Vs. BANKU BEHARI MAZUMDAR

JUDGEMENT

(1.) This was a suit for recovery of two plots of land and for declaration of the plaintiff's right of way over a road between them. The only question that arises for decision is whether the joinder of these two claims is barred under Section 44 of the Code of 1882. The Munsiff and the Subordinate Judge for different reasons have both held that Section 44 is not in the plaintiffs way. The defendants have obtained a Rule from this Court to show cause why their orders should not be set aside.

(2.) It is conceded by the learned pleader for the petitioners that if the right of way such as is claimed in this suit is such immovable property as is contemplated by Section 44, then that section will not bar the present suit. Immovable property is defined in the General Clauses Act as including land and benefits to arise out of land unless there is anything repugnant in the subject or context of the provision of law in which this term occurs.

(3.) The questions, therefore, before us are, first is a right of way immovable property, and secondly if it is immovable property, is there anything in the subject or context of Section 44 repugnant to that construction.