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Now, is there anything on the record which would justify the Collector's Court in giving such a decree to the plaintiff? It would appear there is nothing. It is said that the defendant did not dispute these points ; but the system of our procedure in this country is not such that if a defendant fail to dispute or contest any point, he thereby admits it. On the contrary, if the defendant fails altogether to appear and allows judgment to go by default, the plaintiff is bound to prove his case just as much as if the defendant had appeared and denied the claim.

I think, therefore, we are bound to say that the judgment of both the Courts below in this case of enhancement are not in accordance with the law. At the same time it seems to me that the defendant has been extremely remiss in failing to take this ground of objection in any stage of the proceedings below, and therefore while I think we ought to reverse the decision of the Deputy Collector and of the Judge, and to order the dismissal of the plaintiff's suit, we ought to do so without making any order as to the costs of this appeal.

Glover, J.-I am of the same opinion.

Before Mr. Justice Glover and Mr. Justice Mitter.

1870 July 21.


Act VIII of 1859, ss. 2, 110RemandNon-appearance of Parties.

When a suit has been remanded by the Appellate Court, and then dismissed by the Court of first instance for non-appearance of the parties, the plaintiff is not debarred thereby from bringing another suit upon the same cause of action against the same defendant.

Baboo Nabakrishna Mookerjee for appellant.

The judgment of the Court was delivered by

Glover J.—The point taken in this special appeal is that the suit is barred by section 2, Act VIII of 1859; it being one on a cause of action which haul been previously heard and determined by a Civil Court.

It appears that, on a former occasion, the plaintiff sued the defendant and got a decree in the Court of first instance. On appeal, however, to the Judge, the case was remanded; and on the remand, no one having appeared, either for the plaintiff or the defendant, the suit was dismissed on default. This is the case which is relied upon by the special appellant's pleader as barring the plaintiff's suit.

Now it is quite clear, by section 110, Act VIII of 1859, that a case dismissed under these circumstances would allow of the plaintiff's bringing a

Special Appeal, No. 347 of 1870, from a decree of the Second Subordinate Judge of Hooghly, dated the 16th November 1869, affirming a decree of the Moonsiff of that district, dated the 17th June 1869,

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fresh suit, unless precluded by the rules for the limitation of actions, and it is not contended that the plaintiff is so precluded. Even if it be supposed, for the sake of argument, as the pleader for the special appellant has contended, that section 110 only refers to original cases, and not to cases remanded, still in no case could section 2 of the Act apply, inasmuch as that section refers to causes of action which have been heard and determined by a Court of competent jurisdiction in a former suit between the same parties. In this case it is clear that there was no case determined at all. It was simply dismissed for default of appearance of the parties.

The special appeal is dismissed, but without costs, as nobody appears for the respondent.

Before Mr. Justice L. S. Jackson and Mr. Justice Glover,


1870 July 20.

Dismissal of Petition for non-appearance, when no day had been fixed for hearing il

Act VIII of 1859, s. 217.

Baboo Roma Nath Bose for the appellant.

Mr. R. E. Twidale for the respondent.

Jackson, J.—In this case application was made to execute a decree, and notice was issued under section 216 of the Code of Civil Procedure, to the party against whom execution was applied for, to show cause why the decree should not be executed. He came and presented by his pleader a petition containing certain grounds of objection, and on that petition the Judge made the order that it was to be placed before him with the record. It does not appear that any day was fixed for hearing the petition, but on a subsequent day the Judge states that case was called on, and was repeatedly placed before him, but the pleader did not attend, and therefore the objections were disallowed.

The judgment-debtor afterwards applied to the Judge to reconsider the order, and the Judge there expressly states that the objection had been disallowed in consequence of the absence of the pleader.

It appears by an order subsequently made in the petition of the decreeholder that the arrest of the judgment-debtor has been ordered in execution.

By section 217 of the Code, it is provided that " when such notice is issued, “ if the party shall not attend in person or by a pleader, or shall not show “ sufficient cause to the satisfaction of the Court why the decree should not “ be forthwith executed, the Court shall order it to be executed accordingly.

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* Miscellaneous Regular Appeal, No. 158 of 1870, from an order of the Judge of the 24-Pergunnas, dated the 2nd and 26th April 1870.






“ If the party shall attend in person or by a pleader, and shall offer any objec. “tion to the enforcement of the decree, the Court shall pass such order as in " the circumstances of the case may appear to be just and proper."

It seems that, in this case, the party had attended by pleader, and had offered objection, in the shape of a written petition, to the enforcement of the decree. The proper course would have been for the Judge to have fixed a day on which the petitioner was to be heard, but whether such day was fixed or not, and even if the petitioner was not present, still I think the Judge would be bound to consider the objection which he had filed, and to pass, as required by the Act, such order as in the circumstance of the case appeared to be just and proper. It might be that the ground of objection raised in the petition would be of such a nature as that the Judge might primâ facie, and without going further into the case, see reason for not proceeding with the execution.

I think the Judge's order must be set aside, and he must be desired to take into consideration the objection of the judgment-debtor, and pass such order as he thinks


GLOVER, J.-I concur generally with Mr. Justice Jackson. I think the case should be remanded to the Judge to try the nature of the objections taken by the judgment-debtor. I also think that if a day had been fixed, and the party had not then appeared, the Judge would have been justified in not going further into the case, but might have disposed of it at once.

Before Mr. Justice L. S. Jackson and Mr. Justice Glover.


1870 June 22.

Right of Way-Easement Limitation-Act XIV of 1859.

A right of way over the land of another must be kept up by constant use. After a discontinuance of such use for a period of six years, no suit can be brought to re-establish it.

Baboo Koma Kant Sein for the appellant.

Baboo Boikanto Nath Paul for the respondent.

The facts of the case sufficiently appear in the judgment of the Court, which was delivered by

Jackson, J.-It appears to me that the decision of the lower Appellate Court in this case was erroneous, and that it is much to be lamented that the careful and well-considered decision of the Moonsiff was reversed.

The plaintiff, it seems, had purchased a dwelling house which formerly belonged to one Jaykisto Nandi, a relative of the defendant. Jaykisto Nandi having died, his widow sold the house, which appears to have remained

* Special Appeal, No. 294 of 1870, from a decree of the Judge of East Burdwan, dated the 11th December 1869, reversing a decree of the Moonsiff of that district, dated the 29th July 1869.




unoccupied for the space of six years. The plaintiff has now discovered that the defendant is building a privy which crosses a pathway leading to a tank, HARIDAS which had formerly been used by the female members of Jaykisto's family ; and he brings his suit, asking for possession of the pathway, and for the pulling JADUNATH

Durt. down of this construction erected by the defendant.

The Moonsiff took evidence and went to the spot, and he ascertained that the pathway in question lay over ground belonging to the defendant; that in the life-time of Jaykisto, and, after his death, in the time of his widow, the members of both families had been accustomed to use this pathway and a khirkee, or private door, communicating therewith ; but that for some years since Jay

2 kisto's widow had left the place, this pathway had not been used by any person residing in that house. He found that the land belonged to the defendant, and considering that by six years' non-user, the plaintiff had lost the right to claim that easement, he dismissed the suit so far as it related to the pathway, but he ordered the defendant to pull down the privy, on the ground that it was a nuisance, an inconvenience to the plaintiff, and likely to interfere with his occupation of his own purchased premises.

The plaintiff did not appeal from that part of the decision by which the land was found to be the property of the defendant, but he appealed on the ground that his non-user for six years did not deprive him of the right to the pathway. On that the Subordinate Judge states : “I think a portion of the “ lower Court's decision is incorrect and erroneous, for the existence of a path“way in the place of the disputed pathway, the use whereof is contested, has “ been admitted by all parties as well as by the lower Court on personal "observation by the lower Court. Tbat only defendant and not plaintiff " used this pathway, defendant has failed to satisfy the Court by any particu“lar evidence. Besides, I see no law providing that the non-user of a path

way for six years shall destroy the right to use it. And as regards the judg"ment of the lower Court holding the privy to have been unjustly made by “defendant on that pathway, no appeal has been taken on this point.”

Now that which the Moonsiff found was not that the previous occupants of the house purchased by the plaintiff had a right of way over the land in question, but that when that house was occupied by a family nearly related to that of the defendant, the members of both families were accustomed to go over that path. This it seems to me is far from implying the right of way claimed by the plaintiff: and in this point of view, the observation made by the defendant's vakeel is not altogether out of place, namely, that the widow of Jaykisto did not affect to convey to the plaintiff any such easement as this right of way in question. Presumably, I think, it was a license given to the family of Jaykisto by reason of their relationship to the defendant. But whether this be so or not, it seems to me that a right of the description claimed by the plaintiff,—namely, of passing freely over the land of the defendant is one which requires to be kept up by constant use, and if the plaintiff discontinues the use of such right, if there were any, for the space






of six years, I think he is not in a position to maintain a suit to re-establish it.

I think, therefore, that the decision of the Moonsiff in this case was reasonable and right, and that the Subordinate Judge has reversed it on insufficient and invalid reasons. I think the decision of the lower Appellate Court must be set aside with costs.

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Before Mr. Justice L. S. Jackson and Mr. Justice Glover.

1870 June 23.


Highway-Criminal Procedure Code, (Act XXV of 1861) 8. 320—Civil Court Jurisdiction.

The Magistrate had, on the complaint of the defendant, passed an order, under section 320 of the Criminal Procedure Code, forbidding the plaintiff to retain possession of a piece of land to the exclusion of the public, until he had obtained the decision of a competent Court adjudging him to be entitled to such exclusive possession.

The plaintiff, accordingly, brought his suit in the Moonsiff's Court to recover possession of the land. The Moonsiff gave him a decree for exclusive possession of the land. On appeal, the Judge held that the Moonsiff had no jurisdiction to try the question whether the public had a right of way over the land. The Judge's decision was reversed in special appeal, and the case remanded to the Judge to try the issue, whether the plaintiff was entitled to the exclusive use of the land.

Rooke v. Pyari Lall (1) distinguished.
Baboo Bhairab Chandra Banerjee and Mr. J. S. Rochfort for the appellant.

Baboos Rash Behari Ghose and Debender Chandra Ghose for the respondents.

The judgment of the Court was delivered by

Jackson, J.—This suit is brought by the plaintiff against Ramutam Palit and others to recover possession of a small piece of land belonging to the lakhiraj homestead of the plaintiff.

It appears that the defendant had complained in the Magistrate's Court against this plaintiff in respect of the right of use of this piece of land ; and the Magistrate having enquired into the matter, under the provisions of section 320 of the Code of Criminal Procedure, made an order forbidding the plaintiff to retain possession thereof to the exclusion of the public, until he should have obtained the decision of a competent Court adjudging him to be entitled to such exclusive possession.

The plaintiff being dissatisfied with that order, brought his suit in the Moonsist's Court. The Moonsift took evidence and found that the land formed part of the plaintiff's homestead. He also found that a private path (over that

* Special Appeal, No. 539 of 1870, from a decree of the Additional Judge of Jessore, dated the 30th December 1869, reversing a decree of the Sudder Moonsiff of that district, dated the 14th August 1869.

(1) 3 B. L. R., App., 43; S. C. on review, v. Shama Charan Chatterjee, ib., A. C., 351. ib., A. C., 305 ; see also Hira Chand Banerjee



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