- (1.)This appeal is by the defendant, the Union of India, representing the South Easter Railway and it arises out of a suit brought by the plaintiff company for declaration of a right of easement and a right of passage over the disputed land as described in the schedule to the plaint and for a permanent injunction.
(2.)The plaintiff's case, in substance, was that the plaintiff No.1 and its sister company plaintiff No.2 had been running mills in Fort Gloster mouja. A District Board Road known as 'Domjur Road' runs upto the mills, at one and crosses the Railway line of South Eastern Railway over a level crossing to the east of Bauria railway Station and continues towards the north. To meet the requirements of heavy vehicular traffic, the plaintiffs constructed a wider one mile long private Road upon their own land at a considerable cost and linked up the same with the said District Board Road at the level crossing. At the time of construction of the said Road, the Managing Agent of the plaintiff company carried on negotiation with the authority of the Bengal Nagpur Railway for a through passage of the vehicular traffic along their private Road and over a portion of the Railway's land, being Plot Nos. 1111 and 1122 at khatian No. 30 of mouja Burikhal. The terms settled upon the negotiation were that the Railway would do the earth-work for the Road within the boundaries of Bauria Railway Station free of costs; that the plaintiff company would metal the Road within the Railway's boundaries and maintain with proper repairs at the cost of the company. The Road within the Railway boundary shall be considered as public one and no toll should be charged for traffic for it. On the Road outside the Railway boundary the company would charge tolls on vehicular traffic, foot passengers being allowed to use it free of costs and are provided with passage over it on such day in the year that the plaintiff company considers it necessary to close it.
(3.)The suit was contested by the Union of India. The defendant denied about the agreement over the suit land as alleged by the plaintiffs and it contended that no terms was settled on the basis of any such negotiation. The disputed land was acquired by the Government under the land acquisition proceedings for the use of Bengal Nagpur Railway and the title of suit land was always and even now is with the Government. The plaintiff company never acquired the right of way over the disputed pathway by continuous and uninterrupted user for over twenty years and no obligation undertaken by the Railway Authorities ripen into a legal right in favour of the plaintiffs as alleged.