ABDUL HAQUE Vs. SMTARABANNESSA

JUDGEMENT

(1.) In the suit out of which this appeal arises, the plaintiffs sued the defendants for recovery of joint possession of an eight annas share in certain disputed land or in the alternative for a declaration of their right of easement in respect of this land. The land in dispute consists of a narrow channel immediately to the north of a District Board Road, which connects a Doba belonging to the plaintiffs, situated immediately to the south of their homestead with a khal to the west of some land belonging to the principal defendants. Admittedly the plaintiffs and the defendants are mokarari lease holders under the same landlords. It would appear that their ancestors partitioned their property about 80 years ago and, as a result of this partition, the predecessors of the plaintiffs acquired an allotment to the east of the channel whereas the allotment of the predecessors of the defendants fell to the north of the channel. The learned Munsif held that the plaintiffs were entitled to a declaration of their right of easement over the disputed channel on the assumption that this right had originated from a lost grant. The learned Subordinate Judge however reversed this decision on two grounds: (1) that having regard to certain observations made by Chatterjea, J. in Madan Mohan V/s. Sashi Bhusan AIR 1915 Cal 403, the plaintiffs were unable to acquire any prescriptive right over the channel in question as against the defendants; and (2) that the circumstances of the case indicated "that no question could arise with regard to the presumption of any lost grant.

(2.) The findings of the learned Subordinate Judge show clearly that it was only after the construction of the District Board road immediately to the south of the channel that the plaintiffs began to use the channel in question as a boat passage and this seems to have been due to the fact that, when the District Board road was constructed 40 or 45 years ago, this road blocked the access of the plaintiff's boats to a watery passage immediately to the south of the road and it would appear that for some time after the construction of the road the predecessors of the defendants allowed the predecessors of the plaintiffs to make use of the channel to the north of the District Board road as a passage for their boats. It would also appear that during this time the predecessors of the plaintiffs were merely licensees in respect of the use of the channel in question: In view therefore of the facts which have been found by the learned Subordinate Judge, it would be impossible to hold that the right to use the channel to the north of the District Board road had any legal origin in a lost grant. The next question however which arises for consideration is, whether or not the plaintiffs can acquire the right to use this channel by prescription. The difficulty with regard to this point is that it is admitted that both the plaintiffs and the defendants are permanent lease holders under the same landlords. If it could be held that the landlords at the time when the leases were granted to the predecessors of the contending parties had parted with all their rights over the demised land, there would be no difficulty, but as pointed out by Jenkins, J. in Kally Das Ahiri V/s. Mon Mohini Dassi (1897) 24 Cal 440: A man who being owner of land grants a lease in perpetuity carves a subordinate interest out of his own and does not annihilate his own interest.

(3.) The views of Jenkins J. appear to have been accepted by the Judicial Committee of the Privy Council in Abhiram Goswami V/s. Shyama Charan Nandi (1910) 36 Cal 1003. In that case the observations of their Lordships of the Judicial Committee are as follows: Sir Robert Finlay, in his able argument for the respondents, contended that a mokarari lease is tantamount to a conveyance in fee simple, and that the lessee must therefore be treated as a purchaser within the meaning of the Limitation Act. But the distinction between the two transactions has been well pointed out by Jenkins, J. in his judgment in Kally Das Ahiri V/s. Mon Mohini Dassi (1897) 24 Cal 440 Because at the present day , says the learned Judge, a conveyance in fee simple leaves nothing in the grantor, it does not follow that a lease in perpetuity here has any such result..... The law of this country does undoubtedly allow of a lease in perpetuity.... A man who being owner of land grants a lease in perpetuity carves a subordinate interest out of his own interest. This result is to be inferred by the use of the word lease which implies an interest still remaining in the lessor .