High Court
Case Details
RSA 34/2012 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY JUDGMENT & ORDER(ORAL)
Legal Reasoning
This second appeal has been preferred by the defendants against a judgment of re versal dated 25.10.2011 passed by the learned Civil Judge, Darrang at Mangoldoi in Title Appeal No. 18 of 2008. The trial Court found that the plaintiffs proved their claim as to easement of necessity. Plaintiff No. 1 is the mother of plaintiffs No. 2, 3 & 4 and all of them are successors in interest of Late Patit Pawan Nag. The suit was originally filed in the court of Civil Judge vide Title Suit No. 1/2004 and thereafter the same was transferred to the court of Munsiff in view of enhancement of pecuniar y jurisdiction of the latter and the suit was renumbered as Title Suit No. 53 of 2006 . By filing the suit, the plaintiffs stated that in the year 1948, Patit Pawan Nag , their predecessor came in possession of the suit land measuring 1 Ka tha 16 Lechas covered by Dag No. 533 of Mayadi Patta No. 211 under Mouza Rangama ti in Mangoldoi by obtaining lease from the original owner, one Krishna Kanta Ha zarika at annual rental of Rs. 16/-. Subsequently in the year 1968, being in pos session thereof Patit Pawan Nag purchased the said land from legal heirs of Kris hna Kanta Hazarika and since then the family is enjoying the land by constructin g house thereon for residential purpose. Patit Pawan Nag died in the year 1981 a nd the plaintiffs are in possession of the land. Vide paragraph 6 of the plaint, the plaintiff claimed that there is a passage measuring 6 ft by 73 ft running e ast west from their house towards the east connecting their house with the Munic ipal Road and they have been using the said passage as their sole space for ingr ess and egress for all these years since beginning without any lack or hindranc e from any quarter. But on 03.12.2003 the defendant obstructed the said passage by constructing a tin wall and did not allow the plaintiffs to make use of the passage any more. On the following day on 04.12.2003 they have dug a tube well o n the passage. On 20.12.2003 the defendants have constructed a tin shed. They ha ve also planted some banana trees. The plaintiffs claimed that this path is the only means for their ingress and egress and they have been using the same for mo re than 55 years last from the time of their predecessors in interest. In paragr aph 13 of the plaint it has been further asserted that 20 years ago they obtaine d municipal water connection by drawing an underground pipe along the said passa ge. They have also obtained a telephone connection in the house by drawing overh ead wire along the said passage. With this fact the plaintiff claimed to have ac quired the right of Easement of necessity over land under schedule ’Ka’ to the p laint. The defendants filed a written statement denying the claims of the plaintiffs. T he defendants have sought to explain existence of water supply line and telephon ic line along the suit path by paragraph 15 of their written statement. Accordin g to the defendants the plaintiffs approached the defendants for according permi ssion to take water supply connection to their house to the suit land until alte rnative arrangement was made by the authority and the permission was granted. So far the allegation of taking telephone connection is concerned the defendants s aid that despite their objection the telephone line was drawn along the suit lan d. The defendants say that there was a proceeding being Misc. Case No. 249/2002 under Section 107 Cr.P.C. with respect to the suit passage and the same ended on compromise on 03.05.2003. According to the defendants the telephone connection was obtained unauthorisedly during that intervening period. The defendants in pr argraph 23 of the written statement had come forward with the pleading that the suit path is not the only means of ingress and egress for the plaintiffs and the re is an alternative path in between the house of the plaintiffs and the house o f one Balai Saha. The defendants asserted that the plaintiffs and some other per sons living on both sides of the said passage the said constructed the alternati Whether there is any cause of action? Whether Easement Act is operative in Assam, if not whether the suit is m ve and that the claim over the suit path is not tenable. On the basis of the aforesaid pleadings the learned trial Court framed as many a s 7 issues initially. Subsequently 3 more additional issues were also framed. Al l these issues are as below: ISSUES: 1. 2. aintainable in its present form? 3. d in para 2 of their W/S? 4. Whether the description of the suit path and the sketch map is correct, if not, whether the suit is bad for want of proper description of the suit path? 5. Whether the valuation of the suit for the purpose of jurisdiction and co urt fee is correct and whether proper court fee has been paid? 6. ay has been claimed? 7. Whether the suit is bad for non-joinder of necessary parties as indicate Whether there exists any path in respect of which easementary right of w To what other reliefs, if any, the plaintiffs are entitled to? ADDITIONAL ISSUES: Whether the suit land is used as path for more than 55 years by the plai 1. ntiffs peacefully and openly claiming title thereto as an easement and as of rig ht without interruption? 2. Whether the plaintiffs were dispossessed by the defendants from the suit path forcibly ad wrongfully on 3/12/03 as alleged in the plaint? 3. Whether the plaintiffs are entitled to damage worth Rs. 50,000/- against the defendants for their forceful and wrongful dispossession from the suit path ? During trial plaintiffs examined 5 witnesses while defendants examined 4 witness es. The learned trial Court by judgment dated 04.11.2008 dismissed the suit hold ing that there is an alternative path which is bifurcated near the house of Hare krishna Mandal to the south which goes to the house of the plaintiffs and it was constructed in the year 1978 and has been used by the persons named in the writ ten statement for going to the Municipal Road. According to the learned trial Co urt the plaintiffs have failed to prove the user of the suit path continuously a nd uninterruptedly for last 55 years as claimed by them. The learned Court held that three tube wells and tin chalas stand on the said place since 20 - 25 years . Aggrieved by the judgment of the trial Court the plaintiff approached Civil Judg e, Darrang by Title Appeal No. 18 of 2008. The learned appellate Court after con sideration of the materials on record has held that defendants Sri Dilip Kumar D ey in his written statement and in his cross-examination admitted that the suit land was used by them as path up to a distance of 25 ft for entry and exit from their house to Municipal Road in the east. He also admitted in his cross-examina tion that the suit path is an open space from eastern boundary of the plaintiffs land to municipal boundary in the east and they used this suit land as road for last 38 years since the time of their father. Relying on the municipal taxes th e learned appellate Court has observed that water supply line alongwith the suit path to the house of the plaintiff has been established. It is also the finding of the learned appellate Court that PWs 1, 2, 3, 4 & 5 have corroborated each o ther in regard to existence of the suit path. The copy of the deposition furnish ed by the parties show that plaintiffs have proved their user allowing the suit path for long time and thereby discharged their burden. So far the burden of the defendants in regard to existence of the alternative path as made out in the wr itten statement is concerned, the learned appellate Court did not find favour wi th the same and held that failure of the defendant in examining the neighbours l ike Harendra Mandal, Bankim Dey, Haricharan Bhowmik, Madhu Saha and Bipul Dey re quired drawing of adverse presumption in regard to the plea raised by defendants as to existence of alternative path and the same as claimed in the pleading can not be said to have been established. Since this is a case of user of land sa so le means for the purpose of ingress and egress, the chance of any documentary ev idence in support thereof is virtually out of question and oral evidence by the parties is the only recourse. While it is the finding of fact by the learned app ellate court that the plaintiffs by examining 5 witnesses have established their claim of using the path as sole means for ingress and egress, the defendants ha ve not led evidence of independent witnesses particularly the persons associated with it for the purpose of establishing the existence of alternative path. The claim of easement of necessity can be defeated only if existence of an alternati ve path can be established. I have heard Mr. B.R. Dey, the learned senior Advocate for the appellants assist ed by Mr. P. Sen and B. Sarkar. I have also heard Mr. D. Mozumder, learned couns el for the respondents. I have perused the pleadings and the copies of the deposition on record. The lea rned senior counsel has submitted that this appeal needs to be heard on the subs tantial question of law that the judgment of reversal cannot be sustained in vie w of exhibit Ka, Ga and Gha and that the suit land has not been properly describ ed as required under the provision of Order VII Rule 3 of the CPC. Having gone t hrough the impugned judgment of the first appellate Court I find that the judgme nt of the first appellate Court has considered exhibit Ka, Ga and Gha. It cannot be said that there is a non-reading of these exhibits. The question is whether the finding with regard to these exhibits can be said to be perverse. This exhib its Ka, Ga and Gha relate to a sketch map as given by the defendant whereby it h as been claimed that there is an alternative path to the east of Balai Dey. The learned first appellate Court has considered the matter and has chosen to disbel ieve it on the ground that the person of both sides of the road in question not having been examined after a claim has been made that they made this road along with the plaintiffs and they have been using it since 1978, the plea of alternat ive path has not been established. Paragraph 13 of the judgment of the first app ellate Court is quoted below: (cid:28)13. Moreover, in para 23(1) or real fact of the written statement specifically stated that a private path i.e. the alternative path was constructed by Harendra Mandal, Bankim Dey, Haricharan Bhowmick, Madhu Saha and Bipul Dey, as so the bu rden lies on them to prove the same. But none of the above persons has been exam ined by the defendant side to establish their claim that the same was public pat h used by the plaintiffs as path since long. (cid:29) On the face of the above discussion, it cannot be said that the findings of the learned first appellate Court in regard to exhibit Ka, Ga and Gha are perverse. Sitting in second appeal under section 100 of the Code of Civil procedure, it is not possible to re-appreciate the evidence so as to whether the findings of fac t by the appellate court is correct or not. So far as second point raised by the learned senior counsel for the appellant i n regard to Order VII Rule 3 CPC is concerned, it is clear that the plaintiff ha s staked claim to a path. The defendant has contested this claim knowing the sui t path and understandably after identifying the same and thus the identity of su it land cannot be said to be in dispute. Moreover, it is a question of fact and not a substantial question of law. In this view of the matter, none of these sub stantial questions as argued by the learned senior counsel appears to arise from the facts of the case.
Decision
Accordingly, this second appeal cannot be admitted and is hereby dismissed. No order as to costs.