Anup Lal Singh v. Haldhar Prasad Singh

---------Plaintiffs/Appellants/Respondents ====================================================== Appearance : For the Appellants : Mr. Jitendra Prasad Singh Mr. Chandra Mohan Jha, Advocates. For the Respondents : Mr. Brij Nandan Prasad, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 9 20-03-2012 Heard Mr. J.P.Singh, the learned counsel appearing on behalf of the appellants. The defendants are the appellants in this Second Appeal against the judgment and decree of reversal. The suit has been filed for declaration of right of easement over the suit land to its user as Rasta by the plaintiffs. It is the case of the plaintiffs that the defendants were the title holder of 34 decimal land of plot no.33 and the plaintiffs had purchased 17 decimal land out of the 34 decimal from the defendants. It is further case of the plaintiffs that the suit land which is a 10 feet wide Rasta has been left by the 2 Patna High Court SA No.333 of 2009 (9) dt.20-03-2012 defendants and is being used by both the plaintiffs and the defendants as Rasta.

It has also been asserted by the plaintiffs that the suit land is the only Rasta for ingress and egress of the plaintiffs. The defendants denied the claim of the plaintiffs and have pleaded that the plaintiffs have got alternative Rasta for their ingress and egress and the suit land is not the Rasta being used by the plaintiffs. The trial court came to the finding that the plaintiffs failed to establish their right of easement as claimed over the suit land. It has also been held that there was another Rasta available to the plaintiffs. The trial court on this main findings dismissed the suit. In appeal, the Appellate order re-appraised the evidence of the parties and has come to the conclusion that except the suit land the plaintiffs have no other passage for their ingress and egress. It has also been found that the plaintiffs have been using the suit land as Rasta and on the basis of this conclusion the appeal was allowed and the easementary right claimed by the plaintiffs has been declared over the suit land.

Learned counsel appearing for the appellants has submitted that the appellate court below has ignored the material evidence on record and its findings are vitiated on that score. It has been urged that there are evidence on record, led by the defendants 3 Patna High Court SA No.333 of 2009 (9) dt.20-03-2012 which establish that the plaintiffs have got another passage for their ingress and egress and the trial court has rightly dismissed the suit on the basis of those evidence. After perusal of the judgments of the courts below and considering the submissions on behalf of the appellants, it appears that it is an admitted fact that the plaintiffs are purchasers from the defendants and have claimed the suit land as the only passage available to them for coming to the village road from their purchased land. A Pleader Commissioner was appointed to make local inspection and the report of the Pleader Commissioner has been marked as Ext-3.

This report clearly shows that there is no other way of egress and ingress in the purchased land of the plaintiffs except the suit land. It has also been reported that the suit land is in use of the plaintiffs as passage for coming to the village road from the house which the plaintiffs have constructed over their purchased land. The trial court has not considered the entire evidence before coming to the finding that the plaintiffs have another passage available to them. However, the appellate court has considered the oral as well as documentary evidence including the report of the Pleader Commissioner(Ext-3) for coming to the finding that the suit land is the only passage available to the plaintiffs for ingress or egress to the purchased land over which 4 Patna High Court SA No.333 of 2009 (9) dt.20-03-2012 their house also stands. No perversity could be pointed out in the findings of the Appellate Court below. There is no substantial question of law arising for consideration in this appeal which is accordingly dismissed. B.Kr./- (Vijayendra Nath, J)