JUDGMENT

O' Kinealy and Ameer Ali, JJ. - This is a suit brought to establish a right to a ferry franchise, called the Permutta-Guzarghat-Aglapur ferry, in the neighbourhood of Manikgunge, and to have it declared that the defendants have no right to ply or run the ferry said to have been carried on in the vicinity of the plaintiffs' ferry.

2. The plaintiffs stated that the Permutta-Guzarghat-Aglapur ferry was settled with their predecessors in title with the settlement of a 6-anna share of pergunnah Khalilabad entered in the Government rent-roll as No. 113; and they asserted that from the time of the Permanent Settlement downwards till about 1286 they had been in undisputed possession of this ferry, They further stated that in the year 1286 the defendants set up a rival ferry, and by degrees succeeded in putting an end to their ferry in 1289. In paragraph 3 of the plaint they said:

The said ferry-ghat had always remained in the ownership and possession of the plaintiffs Nos. 1 to 15, though its landing places had to be changed in consequence of the changes in the course of the river, and of alluvion and diluvion and other causes. At the present day the ferry-boats have to ply sometimes between chur Parmessarpati, chur Angutia, chur Mohespur, etc., on the eastern bank, and mouzahs Bairajani, Deogram, and Angutia, etc., on the western bank of the river, for the purpose of conveniently carrying men across it, and other reasons. The aforesaid ferry-ghat of the plaintiffs also had existed for more than twenty years at the places aforesaid and their contiguous places on the bank of the river Dhuleswari for the purpose of conveniently carrying men across it, and on account of changes in the course of the river, alluvion, diluvion, and other causes.

3. This is the ferry described by the plaintiffs for which they asked for the declaration in the first prayer in the plaint.

4. In answer, the defendants pleaded that the ferry set up by the plaintiffs had never been plied in the different places stated by them. They said that even if the claim put forward by the plaintiffs had any substantial basis of truth, yet it was barred, inasmuch as the right had not been used for very many years. Moreover, they claimed a right in themselves to a ferry-ghat called Manickgunge Factory ferry, which, if not on the track of the ferry set up by the plaintiffs, lies within its immediate vicinity. They did not set up an exclusive monopoly of it: but they said that they plied for more than a period of 20 years, and that their ferry was requisite in the interests of their tenants as well as the interests of the public.

5. In this state of the pleadings, the Subordinate Judge fixed eleven issues for trial.

6. It is unnecessary now to refer to the 1st, 2nd and 3rd issues. The real ground of dispute depended upon the decision of the 4th, 5th, 6th and 7th issues, the further relief asked for having depended upon the answer given to the remaining four issues.

7. The 4th issue was, whether the defendants had dispossessed the plaintiffs. That the Subordinate Judge decided in favour of the persons who brought the suit.

8. The 5th issue referred to the plea of limitation. That also the Subordinate Judge decided in favour of the plaintiffs.

9. The 6th issue referred to a matter of pleading, that is to say, whether the plaintiffs were justified in basing their title both upon prescription and upon the grant in the same suit. That also was decided in favour of the plaintiffs.

10. The 7th issue runs as follows:

Are the plaintiffs entitled to the ferry right claimed by them on any or all of the grounds stated by them in the plaint?

11. This issue the Subordinate Judge decided in favour of the defendants. He held that a suit to establish a ferry-right over such an extensive reach of the river as is claimed by the plaintiffs was preposterous. The ferry claimed he considered existed from a long time, but the plaintiffs had failed to show that the starting point from the western side of