GOPAUL CHUNDER MOOKERJEE Vs. JUDOO LALL MULLICK

JUDGEMENT

(1.) THE Plaintiffs below, who are the Respondents here, and the Defendant, who is the Appellant, occupy contiguous houses and premises in Calcutta, with a southern frontage in Pathooria Ghattah Street. The Plaintiffs' house lies to the eastward of the Defendant's. Adjoining the north side of the Defendant's premises lies a piece of ground, also belonging to him, and fronting northwards to a street called apparently by various names, of which Jorabagan is one. At a point between the two streets the Defendant's property juts out a few feet to the eastward, and to that extent overlaps the property of the Plaintiffs, and lies to the north of it.

(2.) THE following facts are common to the case of both parties; that an open drain used to run along the eastward boundary of the Defendant's property from the point where it juts eastward into Jorabagan; that at the same point there communicated with this drain one of the drains of the Plaintiffs' house leading directly from one of their privies; that at the point of communication there was a doorway in the Plaintiffs' wall; and that in the year 1876' the drain was filled up, and has never again been opened.

(3.) AGAINST this evidence the Defendant has produced nothing at all except that he never saw the Plaintiffs' scavengers at work, and that he and Mr. Edwards, a surveyor, say that it was impossible for the scavengers to go where several witnesses saw them go. And, in cross-examination, the Defendant admitted that the doorway could only lead to the drain.