PRAN NATH KUNDU Vs. EMPEROR

JUDGEMENT

(1.) The proceedings m this case originated in an application addressed to the Circle Officer of Pangsa Circle by which a number of persons complained that the petitioner Prannath Kandu had placed some refuse etc., on a public road running through plots 511, 512 and 513, which was in use for a very long time, in order to convert it into land in his possession and had thus caused inconvenience to the applicants. It prayed that the public road ight be cleared up and opened to the public as before. It was forwarded by the Circle Officer to the Sub-Divisional Magistrate who summoned the petitioner under Secs.283 and 290, I.P.C. The case was tried by another Magistrate who eventually convicted the petitioner under Secs.283 and 426, I.P.C. and sentenced him to pay a fine of Rs. 20, in default to undergo simple imprisonment for one month. On appeal the District Magistrate has altered the conviction to one under Section 341, I.P.C. keeping the sentence intact. The learned District Magistrate has found that the path lies on the land of the accused and to that extent it is not a public path, but that the public have been using it for over twenty years and that right of way has been established. The petitioner's contention is that these findings, and for the matter of that the evidence, is not sufficient for the conviction of the petitioners.

(2.) In the Full Bench decision of this Court in the case of Chuni Lal V/s. Ram Kissen Sahu (1888) 15 Cal. 46 (F.B.) Wilson, J., in one of his classical judgments, agreed in by the other members of the Bench, explained that in India just as much as in England there are three distinct classes of right of way: First there are private rights in the strict sense of the term, vested in particular individuals or the owners of particular tenements, and such rights commonly have their origin in grant or prescription. Secondly there are rights belonging to certain classes of persons, (certain portions of the public, such as the freemen of a city, the tenants of a manor or the inhabitants of a parish or village. Such rights commonly have their origin in custom. Thirdly, there are public rights in the full sense of the term which exists for the benefit of all the Queen's subjects; and the sense of these is ordinarily dedication.

(3.) The first question that falls for determination is, to which class of rights does the right alleged to be infringed in the present case appertain? In the application to which I have referred the way is described as a public way. The evidence bearing on the matter stands thus: P.W. 1 "The public of the village Maguradangi and others walk by this path...The path is 4 or 5 cubits wide aud 5 or 6 rasis long. It does not go beyond his (meaning witness s,) house. From witness's house it goes to accused's house and then by Sham Lai Kundu's house and thence to the Railway line." P.W. 2 - "The path is 6 cubits wide. The path from the accused's house up to the railway line to the north and then east is raised, but not so on the south up to the house of P.W. 1." P.W. 3 "The path was used by public for a very long time for over 20 years." P.W. 4 "The path does not meet the halot on the south. It passes along the south east of house of P.W. 6 and then along the south of his house. The path is not a raised one. The witness comes southward from his house and going along the south of the house of P.W. 1 and then east, he uses the path, P.W. 3's house is south of witness s, and he goes eastward by the south of the house of P.W. 1 and then cast and then uses the path in question. Another halot to the south of the house of P.W. 1 is 200 cubits away from the path alluded to by the witness along the south of the house of P.W. 1" P.W. 5 Witness, P.W.'s and the public walk over it. There is no other path for going to that direction.