Janki Ram and Others vs Saukhi Panjara and Another

Jwala Prasad, J.—This is an application against an order of the Sessions Judge of Monghyr, dated 14th September 1927, confirming that of the Magistrate dated 13th August.

The petitioners applied to the Magistrate for directing the opposite party to remove an encroachment from a public lane. There is a lane bearing Cadastral Survey No. 337 from south to north and meets another public lane bearing Survey No. 351. Near the junction of the two roads on the west is a Well. West of that is plot 138 which belongs to the opposite party. The well also belongs to them. On the south of the well, by digging, the opposite party discovered a sort of chabutra touching the southern step of the well. The chabutra is about one foot ten inches in length on the roadside. This, along with the width of the road on that point, which measures six feet four inches, would make the width of the lane eight feet two inches. The upper part of the road above north of the disputed point measures about eight feet. The cadastral survey, which took place over, 12 years ago, shows the disputed portion as part of the public lane 387. The learned Sessions Judge says so and also the amin who was originally deputed to measure the place and find out whether there was an encroachment.

Undoubtedly, therefore, the disputed portion marked green, ABC, below the step of the well on the south of it is an encroachment of the lane as shown in the cadastral survey.

It is urged that the small platform was covered with earth about two feet high and came to be on the same level with the lane and hence it was not discovered by the opposite party as to whether it was part of the road or not, it being found by digging that there were bricks and chabutra underneath the covered portion. The opposite party claim it as part of their well and made originally for the convenience of the low class people for sitting and drinking purposes. This user, however, discontinued some time before the cadastral survey took place and I wonder what the low class people who were using it before have been doing so long and how they are likely to be inconvenienced by letting this portion to remain as a part of the lane. The presumption is in favour of its being a part of the lane. The Court below has accepted it by saying that the bricks and platform must have at one time formed part of the lane. No explanation has been given as to why it was allowed to be buried under earth for so long a time. If by conduct and acquiescence it was allowed to be used as a part of the road before the cadastral survey took place those interested in it must be presumed to have relinquished their claim to it. They have to establish their right to the lane by showing not only that at one time they had the right, but that they have still a subsisting right. A long user by a person of what is claimed to be a part of the public way may be taken as a bona fide assertion of claim ousting the jurisdiction of the criminal Court to pass a summary order u/s 133 against him. Vice versa a long user by the public of a place as part of a public road or way raises a presumption of relinquishment by the owner thereof of his right over it. The criminal Court has to maintain the possession as at present found and undoubtedly the land in dispute at present is a part of the public road as shown in the cadastral survey; and the right, if any, or the opposite party was probably buried with the chabutra itself and can only be revived by the decision of a competent Court in their favour.

The opposite party do not want to use the disputed land except for the purpose of maintaining it as a chabutra for low class people to sit thereon and to draw the water of the well for drinking purposes.

The first party undertakes to pave the lane 387 from the points E to B including the disputed land in question and also to the south of it in lane 351 at the junction up to point C in order that the lane may serve both the purposes: of its being used as a road by the public and for people to sit there while using the well. This the first party can only do on behalf of the public and as a member thereof without claiming any personal right to himself in the lane.

The orders of the Courts below are set aside, the rule is made absolute against the opposite party and it is hereby directed that the second party do fill up the encroachment as shown in the plan (Ex. 5) A B C and A to E.