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2007 DIGILAW 586 (CAL)

ABDUL ODUD v. ABDUS SUKUR

2007-08-02

MANIK MOHAN SARKAR

body2007
( 1 ) THIS application under Article 227 of the Constitution of India has been preferred against Order No. 17 dated 8. 8. 2006 passed by Sri S. Sengupta, learned Civil Judge (Senior Division), Kandi, Dist.- Murshidabad in Misc. Appeal No. 10/2002. ( 2 ) BRIEFLY, the petitioners' case is that plaintiff/opposite parties filed title Suit No. 155/2000 in the Court of learned Civil Judge (Junior Division, 1st Court at Kandi, Dist.- Murshidabad together with an application under order 39 Rules 1 and 2 of the C. P. C. The learned Trial Court initially passed an order to maintain status-quo in respect of the suit properties, which was subsequently vacated by an order dated 27. 6. 2002 since the learned Trial Court did not find any prima facie case or balance of convenience or inconvenience and also for want of identity of the suit property. Plaintiff/opposite parties thereafter filed an application for the amendment of the plaint though no separate application for amendment of the injunction application was filed, but filed an appeal against the order of the learned Trial Court dated 27. 6. 2002 being Misc. Appeal No. 10/2002 wherein learned Judge passed an order on 07. 01. 2004 granting injunction restraining the present petitioners/defendants from making any disturbance over the right of passage of the plaintiffs/opposite parties over the schedule properties. The said order was challenged but present petitioners filed civil application before this Court being C. O. No. 1715 of 2004 and subsequently, the said revisional application was disposed of by this Court on 5. 8. 2004 by setting aside the order of the 1st Appellate Court dated 7. 1. 2004 with a direction to re-heard the Miscellaneous Appeal after givng an opportunity to the petitioners/defendants to file written objection against the amended version of the plaint. Subsequently, learned Civil Judge, (Senior Division), Kandi, Murshidabad heard the said Misc. Appeal being no. 10 of 2002 and passed the impugned order on 8. 8. 2006 allegedly without complying with the specific direction of this Court, without discussing the prima facie case. It is alleged that the learned Lower appellate Court head the amendment application which was to be heard by the learned Trial Court. ( 3 ) BEING aggrieved and dissatisfied with the said order dated 8. 8. 2006 in Misc. 8. 2006 allegedly without complying with the specific direction of this Court, without discussing the prima facie case. It is alleged that the learned Lower appellate Court head the amendment application which was to be heard by the learned Trial Court. ( 3 ) BEING aggrieved and dissatisfied with the said order dated 8. 8. 2006 in Misc. Appeal No. 10 of 2002 of learned Civil Judge (Senior division), Kandi, Murshidabad the present revisional application has been preferred. ( 4 ) MR. Nure Zaman, learned Advocate for the opposite parties was present at the time of hearing of the present application and submitted that no written objection would be filed by the opposite parties to expedite the disposal of the present application without admitting the contents of the present application. ( 5 ) IN course of hearing of the submission of the learned Advocates for the respective parties it is revealed that the defendants/opposite parties filed the Title Suit being No. 155 of 2000 before the learned Trial Court claiming their right of easement over the passage in Plot No. 2276 by long user and that the opposite parties are using the said passage for egress and ingress, from or to, from their house on Plot Nos. 2292 and 2292 to the main Road. On the other hand, the present petitioner denied at first the user of the said Plot No. 2276 as the path way or passage by the opposite parties at any point of time and thereafter also denied about their claim of acquisition of any easement right over the said passage. ( 6 ) MR. Shyamal Chakraborty, learned Advocate for the petitioners submitted that practically the said passage on Plot No. 2276 has got no separate existence and it is almost attached to their private area attached to their homestead and if the opposite parties are allowed to use the said plot as their passage, it will be an invasion on the privacy of the petitioners. ( 7 ) MR. Nure Zaman, learned Advocate for the opposite parties submitted that the opposite parties are adjoining plot owners of the petitioners and the passage over Plot No. 2276 is being used by the opposite parties for a long time as their only passage for ingress and egress to their house and that the petitioners are trying to obstruct the same by causing some construction work thereupon. Mr. Mr. Zaman further stated that on being threatened to be land-blocked, the opposite parties were compelled to file the title suit before the learned Trial Court to claim and establish their easement right they have acquired through years of user of the said passage on Plot No. 2276 which admittedly belonged to present petitioners. Mr. Zaman further stated that the said passage is actuafly a bank of a tank situated on Plot No. 2276'and it can never cause any invasion of the privacy of the petitioners. ( 8 ) ADMITTEDLY, the Plot No. 2276 is recorded as a passage. The opposite parties filed the title suit before the learned Trial Court praying for an easement right together with a prayer for permanent injunction against the present petitioners over the said passage which requires to be investigated in course of trial of the suit concerned and through an application under Order 39 Rules 1 and 2, obtained a restraint order against the present petitioners from causing any obstruction over the said passage by making any construction work. ( 9 ) IN my view, if the Plot No. 2276 is a passage, question of any construction over the same during pendency of a suit or easement right over the said passage should not be encouraged only on the allegation that there are some defects in the suit which can be repaired through amendment. Such an amendment application of the plaint has already been filed by the plaintiff/opposite parties in the suit. The present petitioners are required to comply with the provision of the C. P. C. for taking the suit ready for trial and hearing and disposal of the same. During the pendency of the suit, both the parties should not be in any aggressive act which disturbs the respective other parties. The parties should maintain peace in respect of the suit property during the pendency of the suit concerned and try for an early disposal of the same. ( 10 ) IN consideration of the facts and circumstances, I am of the view that since the opposite parties have prayed for an easement right over the suit property and as the present petitioners are denying the claim of the plaintiff/opposite parties of such user of the said passage in Plot no. ( 10 ) IN consideration of the facts and circumstances, I am of the view that since the opposite parties have prayed for an easement right over the suit property and as the present petitioners are denying the claim of the plaintiff/opposite parties of such user of the said passage in Plot no. 2276, both the parties should maintain status-quo over the said passage as ordered by the learned 1st Appellate Court, during the pendency of the suit, since existence of prima facie case and balance of convenience and inconvenience is very much in favour of the plaintiffs/ opposite parties. Since, admittedly the Plot No. 2276 has been recorded as a passage, the petitioners/opposite parties should not create obstruction of any nature over the said passage, during the pendency of the suit. ( 11 ) SO, I do not find any reason to interfere with the order passed by the learned 1st Appellate Court which is under challenge in the present application. ( 12 ) IN the result, the present revisional application is dismissed. ( 13 ) HOWEVER, the learned Trial Judge is directed to take all necessary steps for early disposal of the Title Suit being No. 155 of 2000 as early as possible but not later than six months from the date of communication of this order. I pass no order as to costs.