High Court
Case Details
RSA 41/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) This appeal by the plaintiffs is directed against the judgment and decree dated 19.10.2001 passed by the learned District Judge Goalpara in Title Appeal No. 5/1 993, dismissing the appeal preferred by the plaintiffs, by upholding the judgmen t and decree dated 26.10.1992 passed by the learned Munsiff No. 1, Goalpara in T itle Suit 38/1980, whereby and whereunder the plaintiffs’ suit has been dismisse d.
Legal Reasoning
2. The plaintiff filed the suit for possession, based on title, by evicting the defendants from Schedule B land, which is part of Schedule A land, measuring about 6 lechas from north to south, more fully described in Schedule B to the plaint, contending inter alia that out of the total land measuring 3 kat has 2 lechas belonging to Gangadhar Das, the predecessor in interest of the plai ntiff and the proforma defendant, land measuring 1 katha was sold to one Pratap Kalita, in the extreme northern portion, which was claimed to have been purchase d by the defendant No. 1 from the widow of Pratap Kalita, who thereafter encroac hed over 1 katha of land on 29.2.1978. It has further been pleaded that the defe ndant No. 1 has also threatened to use the land on the western boundary of plain tiff’s land with one Bhuban Goswami as path from the north to south of the plain tiff’s land which necessitated filing of the suit. The plaintiff also alleged th at the defendant raised bamboo fencing in spite of protest and cut betel nut tre es from his remaining land. 3. The defendant contested the suit by filing written statement con tending inter alia that he purchased the land measuring 1 katha from the success or in interest of Pratap Kalita on the northern portion of the plaintiff’s land and has been using the path of about 4 ft. in breath for about 50 to 60 years fr om the time of his father which is the only ingress and aggress from his land to the municipal road. 4. Based on the pleadings of the parties the trial court framed the following issues: - (cid:28)1. Whether the plaintiff has cause of action? 2. Whether the suit is maintainable in its present form? 3. Whether the suit is barred by limitation? 4. Whether late Gangadhar Das was the owner and possessor of the suit land? 5. Whether the plaintiff sold and gave possession of the suit la nd to some Pratap Ch. Kalita? 6. Whether on 29.2.78 defendant No. 1 illegally trespassed and d isposed the plaintiff ? 7. Whether the path to municipal road in between land of plainti ff and Bhabandra Goswami and was a common path used by the defendant’s father an d the defendant since 50/60 years back? 8.Whether the defendant caused loss to the plaintiff by cutting earth? 9. Whether the plaintiff has got right title and interest in and possession over the suit land? 10. To what other relief plaintiffs are entitled? (cid:29) 5. The trial court upon appreciation of the evidence on record, bot h oral and documentary, dismissed the suit of the plaintiff by holding that sche dule B land, being used by the defendant, for more than 20 years and being the o nly ingress and egress from his land to the municipal road the plaintiff is not entitled to the decree as prayed for. 6. ch has also been dismissed. Hence the present appeal. Being aggrieved the plaintiff preferred the aforesaid appeal whi 7. n the following substantial questions of law: - The appeal was admitted for hearing vide order dated 26.3.2002 o 1. That, there being no pleading of the defendant of easement of necessity by prescription and there being no pleading and proof of the claim of easement by implied grant whether the lower appellate court was justified in de creeing in the suit ? 2. The learned lower appellate court having arrived at a definit e finding (cid:28)hence the defendant’s plea that he acquired easementary right over th e suit path is not at all believable., whether the court could come to a finding (cid:28)I find that this path was in existence for at least more than 20 years from th e date of institution of the suit, I accordingly hold that the plaintiff has acq uired easementary right over the said path without interruption for more than tw enty years (cid:29) which is not sustainable in law? 3. The finding of the lower appellate court that uninterrupted u se of the path for more than twenty years without there being a finding that the defendant was using the path as of easement and as of right adversely, whether the lower appellate court was justified in dismissing the suit? 8. During pendency of the appeal the appellant No. 2/plaintiff No. 2 expired and the appeal stands abated in so far as he is concerned, which has b een recorded in the order dated 19.8.2013, keeping the question of maintainabili ty of the appeal open, to be considered in due course.
Legal Reasoning
9. pellant as well as Mr. SC Koyal, learned counsel for the respondent. I have heard Mr. AB Choudhury, learned senior counsel for the ap 10. It is contended by the learned senior counsel that the appeal, o n the death of the appellant No. 2, does not abate as a whole as the appellant N o. 2 was unmarried and the appellant No. 1 is the only heir who is already on re cord. The learned senior counsel further submits that the finding recorded by th e first appellate court that the defendant has been using the schedule B land as path for more than 20 years and is the only ingress and egress from the defenda nt’s land to the municipal road, is perverse, which is evident from the finding recorded by the first appellate court that it is the plaintiff who has acquired the easementary right over the schedule B land and hence the suit of the plainti ff ought to have been decreed. 11. The learned counsel appearing for the respondent/defendant on th e other hand did not dispute the submission made by the learned senior counsel f or the appellant that the appellant No. 1 is the only heir of the appellant No. 2. The learned counsel, however, has submitted that it is evident from the judgm ent passed by the first appellate court that the learned Judge has recorded a cl ear finding that the defendant has been using the path over the schedule B land for more than 20 years, which is the only ingress and egress from the defendant’ s land to the municipal road. It has also been submitted that the words ’plainti ff’ occurring in para 11 of the said judgment ought to have been ’defendant’, ha ving regard to the aforesaid finding recorded by the first appellate court. The learned counsel further submits that in view of the clear finding by both the co urts below that the defendant has been using the schedule B land as path for mor e than 20 years, which is the only ingress and egress from the land belonging to the defendant to the municipal road, the courts below did not commit any illega lity in passing the decree dismissing the suit of the plaintiff. 12. I have considered the submission advanced by the learned counsel for the parties and also perused the records including the judgments and decree s passed by the courts below. 13. It is evident from the judgments passed by both the courts belo w that though the plaintiff claims that the schedule B land was never used as pa th he, however, did not examine any neighbouring person and instead has examined one person who had left the place in the year 1962. On the other hand the defen dant has examined a person sharing the same boundary i.e. DW 3, who has in clear term stated that the path over schedule B land is the only ingress and egress f rom the land of the defendant, which the defendant has been using for more than 20 years. It also appears from the finding recorded by the first appellate court in its judgment dated 19.10.2001 that the words ’plaintiff’ occurring in Para 1 1 ought to have been ’defendant’ as the learned Judge has recorded a clear findi ng that the defendant has been using the schedule B land as path for more than 2 0 years, which is the only ingress and egress to the municipal road.
Decision
14. the appeal. Hence the appeal is dismissed. No cost. In view of the aforesaid discussion, I do not find any merit in 15. 16. The parties are directed to bear their own cost throughout. The Registry is directed to send down the records forthwith.