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2007 DIGILAW 239 (GAU)

Dharmeswar Roy v. Putul Chandra Das

2007-03-21

T.NANDA KUMAR SINGH

body2007
1. The appellant/defendant being aggrieved by the impugned judgement and decree dated 25.11.1999 passed by the Civil Judge (Senior Division), Goalpara allowing the Title Appeal No. 14/99 (New) against the judgement and decree dated 18.8.1998 passed by the learned Civil Judge (Junior Division) No. 1, Goalpara dismissing the T.S. No. 63/95 filed by the respondent-plaintiff preferred this Second Appeal. 2. The respondent-plaintiff filed the T.S. No. 63/95 for a declaration that the respondent-plaintiff has easementary right on the suit path described in schedule A of the plaint and sketch map attached to the plaint against the appellant/defendant. The respondent-plaintiff had pleaded in the plaint of T.S. No. 63/95 that the suit path/suit land described in schedule A to the plaint is in possession and used by the respondent-plaintiff as a path from his house for ingress and egress from his land described in schedule 'B' to the plaint to the public road from time immemorial. The father of the respondent-plaintiff also had used the suit path/the suit land for egress and ingress from the land described in schedule B till his death in the year 1970. The suit path/the suit land which lies adjacent to the eastern side of the respondent plaintiffs land is a vacant plot measuring 1K-16L. and it has been recorded as khas land in the revenue record since time immemorial. The suit path is 90 ft. in length and 8 ft. in breath. The respondent-plaintiff also specifically pleaded in the plaint that the respondent-plaintiff has no alternative then the suit path/the suit land for using ingress and egress from his land described in schedule 'B' to the plaint to the public road. The exact position of the suit path is indicated in the sketch map attached to the suit land. 3. In the last settlement operation it is stated that the appellant/defendant had got katcha patta for the suit path/suit land from the revenue authority recorded in his name and wrongfully rise a brick wall foundation for obstructing the use of the suit path/suit land by the respondent-plaintiff for ingress and egress from his land to the public path. On 17.9.1995 while the respondent-plaintiff was clearing the grass and shrubs naturally growing on the suit path/suit land, the appellant/defendant threatened to obstruct the using of the suit land/suit path. The respondent-plaintiff stated that cause of action arose on 17.5.1995. On 17.9.1995 while the respondent-plaintiff was clearing the grass and shrubs naturally growing on the suit path/suit land, the appellant/defendant threatened to obstruct the using of the suit land/suit path. The respondent-plaintiff stated that cause of action arose on 17.5.1995. Accordingly the respondent-plaintiff filed T.S. 63/95 for the declaration that the respondent-plaintiff has easementary right on the suit path/suit land for ingress and egress to public road and also for a mandatory injunction directing the appellant/defendant not to raise any obstruction on the suit path/suit land and also for a decree for perpetual injunction restraining the appellant/defendant from any act of future obstruction. 4. The appellant/defendant also filed written statement in T.S. No. 63/95 denying the case of the respondent-plaintiff pleaded in the plaint. The appellant/defendant also pleaded in the written statement that he purchased the plot of land measuring 1K-2L. covered by Khatian No. 44 and Dag No. 183 from one Latu Ram Roy son of late Thala Ram Roy of village Solmari P.S. & District. Goalpara through registered sale deed No. 21 dated 16.5.1977 and the suit land is miadi patta land and since the date of purchase the appellant/defendant had been in possession of the suit land. The suit path/suit land is not a khas land. The appellant/defendant in his written statement is not denying that the land of the appellant/defendant is situated adjacent to the respondent-plaintiffs land described in schedule 'B' of the plaint. The appellant/defendant in his written statement had not stated that the respondent-plaintiff has another path which can be used by the respondent-plaintiff for his ingress and egress from his land to the public road. The appellant/defendant is also not denying that the respondent-plaintiff has been residing in the land described in schedule 'B' to the plaint and also the land described in schedule 'B' is the ancestral land of the respondent-plaintiff. 5. The learned Civil Judge (Junior Division) framed as many as 7 issues- which are as follows : - "1. Is there any cause of action for the suit ? 2. Is the suit not maintainable ? 3. Is the suit barred by limitation ? 4. Whether the suit land more fully described in schedule 'A' of the plaint has been used by the plaintiff as a path from his house situated in Schedule 'B' land from time immemorial and thereby acquired easementary right of way over the schedule 'A'. 5. Is the suit not maintainable ? 3. Is the suit barred by limitation ? 4. Whether the suit land more fully described in schedule 'A' of the plaint has been used by the plaintiff as a path from his house situated in Schedule 'B' land from time immemorial and thereby acquired easementary right of way over the schedule 'A'. 5. Whether the defendant has put obstruction in the path described in schedule A to the disadvantage of the plaintiff? 6. Whether the suit land is part of the defendant's purchased Land and has been in possession of the defendant since the date of purchase ? 7. Whether the plaintiff is entitled to the reliefs claimed ?" 6. The respondent-plaintiff examined the witnesses including himself in support of his ease but the appellant/defendant did not examine any witnesses. The appellant/defendant had not even come forward for giving statement before the trial court in support of his case in the written statement. The learned trial court had decided the issue No. 7 against the respondent-plaintiff after coming to a finding that there is no pleading about the use of 20 years of the suit path/suit land by the respondent-defendant, ending 2 years next before the institution of the suit, i.e., T.S. No. 63/95 and in the deposition of respondent-plaintiff and his witnesses only mentioned that the suit path/suit land has been using by the respondent-plaintiff for his ingress and egress from the land described in schedule 'B' to the public road and continued to use the same by the respondent-plaintiff for the said purpose from time immemorial till today. There can not be a acquisition of right of easement by loss grant and also that the presumption of loss grant can not be made in respect of the possession which could be characterized as time immemorial. After such finding, the learned Civil Judge (Junior Division) passed the judgement and decree dated 18.8.1998 dismissing the T.S. No. 63/95. 7. Against the judgement and decree dated 18.8.1998 passed by the learned Civil Judge (Junior Division) No. 1, Goalpara dismissing the T.S. No. 63/95 the respondent-plaintiff preferred an appeal being Title Appeal No. 14/99 (New) in the court of the Civil Judge (Senior Division), Goalpara. The First Appellate Court, i.e., learned Civil Judge (Senior Division) had thoroughly discussed the statements of the PWs as well as pleadings of the respondent-plaintiff and the appellant/defendant. The First Appellate Court, i.e., learned Civil Judge (Senior Division) had thoroughly discussed the statements of the PWs as well as pleadings of the respondent-plaintiff and the appellant/defendant. The learned First Appellate Court had, by giving reasons, decided the issue No. 4 in favour of the respondent-plaintiff. (1) that from the statement of the PWs it is clear that the respondent-plaintiff has been using the suit land for his ingress and egress from his land at schedule 'B' to the public road from the time of the respondent-plaintiffs father who had used the said path for ingress and egress for a number of years and the respondent-plaintiffs father died in the year 1970, (2) that there is no path/way other than the suit path for the respondent-plaintiff for his ingress and egress from his land to the public road, (3) that the using of the suit path as ingress and egress for more than 20 years can be termed as using the suit path from time immemorial inasmuch as for the purpose of acquisition of easement by prescription under section 25 of the Limitation Act, 1963, only a period of 20 years will be sufficient, (4) that, from the statement of the PWs it is also clear that the respondent-plaintiff could prove that the respondent-plaintiff has been using the suit path for his only ingress and egress to the public road for more than 20 years, (5) that the appellant/defendant had been adduced no oral or documentary evidence to prove that he purchased the said plot of land as pleaded in his written statement, (6) that the appellant/defendant had not adduced any evidence that there is a path/way other than the suit path for the respondent-plaintiff for ingress air from his land to the public road. 8. The learned First Appellate Court also had shown conscious application of mind to all the issues framed in the T.S. No. 63/95 and made findings, by recording reasons, on all issues. The learned First Appellate Court had given the reasons basing on which he decided the credibility of the witnesses and held that their statements are sufficient to prove the case of the respondent-plaintiff that the respondent-plaintiff has easementary right over the suit part/suit land for using the same for ingress and egress to the public road. 9. The learned First Appellate Court had given the reasons basing on which he decided the credibility of the witnesses and held that their statements are sufficient to prove the case of the respondent-plaintiff that the respondent-plaintiff has easementary right over the suit part/suit land for using the same for ingress and egress to the public road. 9. The learned First Appellate Court had allowed Title Appeal No. 147 14/99 (New) by passing judgement and decree dated 8.10.1999 and set aside the judgement and decree dated 18.8.1998 passed by the learned Civil Judge (Junior Division) No. 1 dismissing the T.S. No. 63/95. 10. While admitting this appeal against the judgement and decree dated 8.10.1999 passed by the learned First Appellate Court, i.e., Civil Judge (Senior Division) this court formulated the following substantial question of law :- (i) Whether the presumption of a lost grant can be made in respect of alleged possession of the plaintiff/respondent characterizing as 'immemorial' which is not exceeding 20 years but short of 20 years. (ii) Whether the material on record and the evidence adduced by the plaintiff/respondent can give him a right to acquire a right of easement independently of the Easement Act or Limitation Act. 11. As discussed above the learned First Appellate Court by giving reasons had come to a finding that PWs are credible and also by showing the conscious application of mind considered the statement of PWs and held that the statement of the PWs proved the case of the respondent-plaintiff that the respondent-plaintiff has been using the suit path for his ingress and egress to the public road for more than 20 years and also that by using the same for more than 20 years the respondent-plaintiff had acquired the easementary right, by virtue of section 25 of the Limitation Act, for using the suit land. The learned counsel appearing for the appellant by relying on the decision of the Apex Court reported in JT 1997 (2) SC 554 (Panchugopal Barua & Ors. v. Umesh Ch. Goswami & Ors. and (1997) 4 SCO 713 submitted that the Easement Act, 1892 is not applicable to the State of Assam and as such the respondent-plaintiff can not claim that the respondent-plaintiff had acquired easementary right over the suit path/suit land. v. Umesh Ch. Goswami & Ors. and (1997) 4 SCO 713 submitted that the Easement Act, 1892 is not applicable to the State of Assam and as such the respondent-plaintiff can not claim that the respondent-plaintiff had acquired easementary right over the suit path/suit land. To the contra the learned counsel appearing for the respondent submits that the respondent-plaintiff had acquired easementary right over the suit path/suit land by prescription under section 25 of the Limitation Act, 1963. The learned counsel appearing for the respondent-plaintiff is also not disputing that the Easement Act 1882 is not applicable to the State of Assam. The learned counsel for the respondent-plaintiff further asserted that as the Limitation Act, 1963 is extended to the State of Assam-The case of the respondent-plaintiff is that he acquired easementary right over the suit land by prescriptions under section 25 of the Limitation Act, 1963. The learned counsel appearing for the respondent further submitted that the word immemorial means that happening from the time immemorial when the date of its commencement is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity. The Apex Court in Patneedi Rudrayya v. Velugubantia Venkayya and Others, AIR 1961 SC 1821 (V48 C 334) in para 10 held as follows : - "10. It would be clear that even in the revised finding the appellate court has not been able to fix the precise year of commencement of the phenomenon. It would, therefore, follow that upon the evidence available in this case the proper inference to be drawn would be that this phenomenon has been known from time immemorial, A phenomenon is said to be happening from time immemorial when the date of its commencement is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity. No doubt the lower appellate court has referred to the years 1920 and 1924 in its finding but it has not said that the phenomenon was observed for the first time in 1924 or even in 1920. It has made it quite clear that the phenomenon was known to be happening in these years and that it must have been happening for many years prior to that." 12. The meaning of word 'immemorial' according to the Blacks Law read as follows Beyond memory or record very old. 13. It has made it quite clear that the phenomenon was known to be happening in these years and that it must have been happening for many years prior to that." 12. The meaning of word 'immemorial' according to the Blacks Law read as follows Beyond memory or record very old. 13. Therefore, this court is of the considered view, in the context of the pleaded case of the respondent-plaintiff that the presumption of loss grant can be made in respect of the possession of respondent-plaintiff by characterizing the word 'immemorial' as the period exceeding 20 years and not less than 20 years ending with 2 years next before the institution of the T.S. Case No. 63/95 inasmuch as the period for acquisition of easement by prescription under section 25 of the Limitation Act, 1963 is only 20 years and also the respondent-plaintiff had proved that the respondent-plaintiff had been using the suit path for his ingress and egress to the public road for more than 20 years. 14. Regarding the second substantial question of law the learned counsel appearing for the respondent submits that in the materials available on record and also the evidence which are discussed by the learned first Appellate Court would be sufficient for coming to the finding that respondent-plaintiff acquired right of casement independently of the Easement Act, 1982 because of section 25 of the Limitation Act, 1963. This court is of the considered view that the submission of the learned counsel appearing for the respondent-plaintiff has force of law and it would hold the held. The High Court in a Second Appeal under section 100 of the CPC can interfere with the finding of the learned First Appellate Court only when the First Appellate Court reverse the order of the trial court without reading the entire evidence and without taking into account the document. 15. The Apex Court in Mehrunnisa (Smt.) and Others v. Visham Kumari (Smt.) and Another, (1998) 2 SCC 295 held that the High Court is justified in interfering with the judgement of the learned First Appellate Court when the First Appellate Court reverse the finding of the trial court without reading entire evidence taking into account documents necessary for giving a finding on the issue. Para No. 14,15,16 and 17 of the Case reported in (1998) 2 SCC 295 (supra) read as follows : - "14. Para No. 14,15,16 and 17 of the Case reported in (1998) 2 SCC 295 (supra) read as follows : - "14. The judgement cited by the learned senior counsel for the respondent on the scope of section 100 CPC are apposite in the circumstances of this case. In J.B. Sharma v. State of M.P., this court while considering the scope of section 100 CPC, observed thus : (p. 454 para. 8) 'It will, thus, be seen that the first appellate court while recording the finding acted on an assumption not supported by any evidence and further failed to consider the entire document on the basis of which the finding was recorded, the High Court was, therefore, justified under section 100 of the Code of Civil Procedure to set aside the finding.' 15. In Dilbagrai Punjabi v. Sharad Chandra again this court while considering the scope of section 100 CPC held as follows : (SCC pp. 712-13, para 5) 'It is true that the High Court while hearing the appeal under section 100 of the Code of Civil Procedure has no jurisdiction to reappraise the evidence and reverse the conclusion readied by the first appellate court, but at the same time its power to interfere with the finding cannot be denied if when the lower appellate court decides an issue of fact a substantial question of law arises, the court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorized to set aside the finding.' 16. To the same effect, another judgement of this court in Sundra Naicka Vadiyar v. Ramaswami Ayyar this court observed as follows : (SCC p. 535, para 3) '3. A perusal of the impugned judgement of the High Court shows that there were good reasons for treating the finding on the question of possession recorded by the first two courts to be vitiated. Apart from the reasons given by the High Court, it appears to us that ignoring some of the documents which were vital for deciding the question of possession also vitiated the finding on the question of possession recorded by the trial court as well as the first appellate court.' 17. Apart from the reasons given by the High Court, it appears to us that ignoring some of the documents which were vital for deciding the question of possession also vitiated the finding on the question of possession recorded by the trial court as well as the first appellate court.' 17. Recently also in Kochukakkada Aboobacker v. Attah Kasim this court again observed on the scope of section 100 CPC, as follows : (SCC p. 390, para 2) 'The appellate court had not considered these documents in a proper perspective and the effect of those documents on the rights of the parties. Accordingly, the learned Judge reluctantly had reconsidered the evidence and, in our view, quite rightly since it is not a mere appreciation of evidence but drawing inferences from the admitted documents. Since proper construction of the documents and inferences have not legally been drawn by the appellate court, the High Court has gone in detail and recorded the finding.....' 16. From the perusal of the judgement and decree of the First Appellate Court dated 25.11.1999 passed by the Civil Judge (Senior Division) in Title Appeal No. 14/99 (New), it is clear that the learned First Appellate Court had read the entire evidence by showing the conscious application of mind for giving correct finding on all the issues by recording reasons. Therefore, this court holds that there is absolutely no justification for interfering with the judgement and decree of the learned First Appellate Court dated 25.11.1999. 17. For the reasons discussed above, this Second Appeal is devoid of merit. Accordingly it is dismissed.