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1870

must be set aside. Of course, as the Judge says, this will not prevent the QUEEN Magistrate from passing a fresh order, after hearing evidence and giving the RAI LACHMI- parties opportunity to show cause, but he cannot pass an order, without first PAT SING.

issuing a rule to show cause.

Before Mr. Justice Phear and Mr. Justice Mitter.

1870 July 13.

MAHOMED ALI AND OTHERS (PLAINTIFFS) v. JUGAL RAM CHANDRA

(DEFENDANT).*

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Right of Way-Questions of Fact.
This was a suit to enforce a right of way over the land of the defendant.
The defendant denied the existence of any right of way over his land.

The Moonsiff found from the report of the Ameen that there were traces of a road over the plaintiffs' land, and from the evidence of witnesses (one of whom had deposed to the effect that the plaintiffs had used the road for 8 or 10 years ; another, that it had been used for 10 or 11 years; and a third, that it had been used for 14 years) that the plaintiffs had used the road for a period of 14 years previous to the defendant's obstruction to such user. He accordingly passed a decree in favor of the plaintiffs.

On appeal, the Judge found that the land in dispute had been settled with the defendant by the Government in 1867; that there was no reservation of any right of way in such settlement; that, previous to such settlement, the land had remained unassessed waste land, of which the Government was the sole proprietor; that the public are generally allowed by Government to use these lands while they remained unassessed to cut timber and collect jungle product. He held that such use could not confer a prescriptive right; and even if it did, the silence of the plaintiffs at the time of the settlement raised a presumption that they had not used the lands long enough to raise such a right. He accordingly dismissed the plaintiffs' suit.

The plaintiffs appealed to the High Court.

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The judgment of the Court was delivered by

Puear, J.-We think that there is no error of law in the judgment of the lower Appellate Court.

That Court was called upon by the plaintiffs to declare that they had a right of way over certain lands belonging to the defendant; and the plaintiffs sup. ported their claim of right by certain evidence of user.

Special Appeal, No. 458 of 1870, from a decree of the Deputy Commissioner of Cachar, dated the 18th December 1869, reversing a decree of the Moonsiff of that district, dated the 7th September 1869.

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1870

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The Court below bas refused to infer from that evidence that the plaintiffs have the right which they claim. It does not appear to us that the Judge made MahoneD ALI any error of law in refusing to draw that inference.

JUGAL RAM As far as we can see, the evidence of user was in its character very inde- CHANDRA. finite. There was very little, if anything, to show that it was user as of right against the defendant and his predecessors in the possession of the land. Indeed, according to the case of both pårties, such user as had taken place appears, for a considerable portion of the time at least, to have been a user by passing and re-passing over waste and jungle lands which nobody had any interest in disputing

There was also evidence which tended to rebut the presumption as to the right which might possibly be justifiable upon the user alone, and the lower Appellate Court drew attention to that evidence, and argued from it that the plaintiffs never had in fact the right which they claim.

We do not, in dismissing this appeal, say that, had the lower Appellate Court, in its discretion and on a full view of the evidence on the record, come to the opposite finding to that at which it has come, that finding would necessarily have been bad in law.

Several cases have been cited to us in which this Court has declined to interfere with findings of fact which have been come to by Courts of regular appeal upon certain evidence of user. But this Court has never yet undertaken to say that user of a specified kind must necessarily in law lead to the inference that the party who has enjoyed that user had a right of way. In all cases where a right of way comes in question, and the party claiıning the right supports his claim by evidence of user only, the Court, which is the judge of fact, must satisfy itself as best it can upon that evidence, having regard to all the circumstances under which the user took place, whether or not the user was founded on actual right. The guiding principle to be observed is that open user of another person's land for the purposes of a road or path-way, if continued without interruption for a long time, and not shewn to be attributable to permission or sufferance on the part of the owner, properly induces the presumption that the user was of right. The only other alternative would be that each passing and re-passing was a trespass, and the law will rather presume that acts, such as these constantly repeated for a considerable length of time before all the world, are rightful than that they are wrongful.

The sooner it is understood that these questions are substantially questions of fact to be determined upon the evidence furnished by the litigants, the better it will be for the interests of the parties to these suits.

We dismiss this appeal with costs.

1870 August 24.

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Before Mr. Justice L. S. Jackson and Mr. Justice Mitter.
NARSING PORKAET (DEFENDANT) v. MUSSAMAT BEWAH (PLAINTIFF)

AND OTHERS (DEFENDANTS).*
Registration-Act XX of 1866, s. 48—Unregistered Deed of Immoveable PropertyPosses-

sion-Priority.
Where possession of immoveable property has been given under an unregistered lease,
a subsequent grantee of a registered lease cannot maintain a suit to evict the lessee in
possession, on the ground of the priority of his deed under section 48, Act XX of 1866.

Baboo Ambika Charan Banerjee for appellant.
Baboo Jadab Chundra Seal for respondent.

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

Jackson, J.-The judgment of the lower Appellate Court in this case is insufficient.

The plaintiff sued to recover possession of this land from the defendant, upon the strength of a potta granted by the widow, who was in the enjoyment of the estate of her late husband. The defendant alleged that he was in posses. sion under a lease granted to him by the husband himself in his life-time.

That lease, it appears, was one which, under the provisions of the Registration Act, should have been registered, but it was not so registered. It was, botwithstanding, received in evidence by the Moonsiff. The Subordinate Judge, on appeal, thought that the Moonsiff was wrong in admitting this unregistered potta, but, agreeing with the Court below apparently in thinking that the plaintiff had made out his potta, gave judgment for him, allowing his crossappeal, and dismissing the appeal of the defendant. It is alleged by the defendant that he not only had a lease of this kind, but that, in pursuance of the lease, possession had been made over to him and rent received by the landlord. It was not, therefore, necessary for him to be made to prove the execu. tion. If the case made by him were true, the other facts would give him a sufficient title to invalidate the claim of the plaintiff.

It has been beld in a judgment, to which I was a party, although the judgment was written by Mr. Justice Markby, in Selam Sheikh v. Baidonath Ghatak (1), that, where possession has been given,—that is, where effect has been given to a document by the transfer of immoveable property,—the provisions of section 48, Act XX of 1866, will not apply; and therefore, if the lease to the defendant in this case be dealt with merely in the view of a parol verbal contract, the lease granted to the plaintiff subsequently, though registered, will not prevail.

We think, therefore, that the case must go back to the lower Appellate Court, in order that it may find upon the evidence whether the defendant had, in fact, got a potta from the husband of the widow, and whether, under that lease, the defendant had got into possession of the land and paid rent.

* Special Appeal, No. 262 of 1870, from a decree of the Subordinate Judge of Midnapore, dated the 8th December 1869, affirming a decree of the Moonsiff of that District, dated the 27th April 1869.

(1) 3 B. L. R., A. C., 312.

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Before Mr. Justice Markby.

SRIMATI RUKKINI DASI v. KADARNATH GHOSE AND OTHERS.

1870 August 9.

Hindu Law-Inheritance-Sister.

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A sister cannot succeed her brother as heir by Hindu law.

This was a suit for partition of certain moveable and immoveable property situated in the town and suburbs of Calcutta and for an account,

The following was the pedigree :

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Lakhimani Dasi.

Khettramohan Ghose.

Dhanmani Dasi.

Ramani Dasi,

Plaintiff.
Bharatchandra Ghose, a Hindu inhabitant of Calcutta, died in 1244 (1837-
1838) intestate, leaving him surviving his widow, Srimati Dayamayi Dasi, and
four sons, Radhamohan Ghose, Nabinchandra Ghose, Badanchandra Ghose,
and Girishchandra Ghose. Nabinchandra died in 1247 (1840-1841) intestate,
leaving him surviving his widow, Srimati Brommomayi Dasi ; an infant son,
Khettramohan Ghose; and two daughters, the plaintiff and Srimati Dhanmani
Dasi. On the 29th Bhadra 1262 (September 13th, 1855), Khettramohan Ghose
died intestate and childless, leaving him surviving his mother, Brommomayi
Dasi; his widow, Srimati Lakhimani Dasi ; and his sisters, the plaintiff and
Srimati Dhanmani Dasi. Srimati Lakhimani Dasi died about a year after her
husband, and Brommomayi Dasi and Dhanmani Dasi died in Aswin 1268
(September and October 1861). The plaintiff was married in 1260 (1853), and
a son was born to her in 1263 (1856) who died unmarried and intestate ; in
Aghran 1262 (November and December 1855), Badanchandra Ghose died in-
testate, leaving him surviving his widow, Srimati Bimola Dasi, and an only son,
Nafarchandra Ghose ; and in Kartik 1276 (October 1869), Radhamohan Ghose
died intestate, leaving him surviving his widow, Srimati Harimani Dasi ; and a
grandson, Kadarnath Ghose, an infant under the age of 16 years; and his
daughter-in-law, Srimati Saradamani Dasi, the mother of the said Kadarnath
Ghose. The plaintiff therefore prayed that she might be declared to be entitled
to the share of Nabinchandra Ghose in the estate of Bharatchandra Ghose,
with all accumulations and additions thereto; that an account might be taken
of what the estate, with such accumulations and additions, consisted, and for
such further or other relief as the Court should think fit.

1870

During the hearing of the suit, it was asked that the plaintiff might be SRIMATI allowed, in case the Court thought she was not entitled to the inheritance as Rukkini Dasi claimed, to put in a claim for maintenance, and to raise an issue as to the KADARNATH amount thereof. The defendants objected to this claim, it not having been GHOSE,

preferred either in the plaint or written statement, and the Court refused it.

Mr. Bonnerjee (Mr. Ingram with him), for the plaintiffs, contended that the plaintiff was entitled to inberit from her brother. According to the principle laid down by MITTER, J., in the case of Guru Gobind Shaha Mandal v. Anand Lal Ghose Mazumdar (1), those who could confer spiritual benefits on the de. ceased were entitled to inherit, and a sister could confer spiritual benefits on her brother.

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Mr. Creagh (Mr. Piffard with him), for the defendants, contended that by Hindu law, a sister could not inherit from her brother, but the property would go to the paternal uncles and cousins, and that a sister could not confer spiritual benefits on her brother. He referred to Shama Churn's Vyavashta Darpana 226, and the cases there cited, and to Ramdyal Deb v. Mussamut Mag. nee (2), Kalee Pershad Surma v. Bhairabee Dabee (3).

MARKBY, J.-In this case the question which is raised for my decision is whether the plaintiff, as sister of Khettramohan, is entitled, under the Hindu law, to succeed to his property in preference to Khettramohan's uncle, his uncle's son, and his uncle's grandson, who are the defendants. Mr. Bonnerjee who appears for the plaintiff

, has very candidly and properly admitted that the direct authorities on the point are against him. I express no opinion whatever whether those authorities are correct or not. But Mr. Bonnerjee maintains that the recent exposition of the law laid down in the case of Guru Gobind Shaha Mandal v. Anand Lal Ghose Mazumdar (1), has introduced a principle of inheritance, which, if applied to this case, would shew that those decisions were based on a misconception of the law. As I before said, whether they are so or not, I express no opinion whatever. It seems to me that that question ought properly to be raised not here, but before the appellate Bench. I think that sitting here I should follow the principle laid down in more than one case, and especially in the case of Raj Koonwaree Kirpa Mayee Dibeah v. Rajah Damoodhur Chunder Deyb (4), and that I ought to hold that a sister is not the heir of her brother ; that being so, the plaintiff must fail in this suit

, which is a suit for a partition. The suit is dismissed with costs on scale No. 2.

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