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2012 DIGILAW 129 (CAL)

Bhutnath Bhunia v. manta Kumar Maity

2012-02-10

TAPAN KUMAR DUTT

body2012
JUDGMENT TAPAN KUMAR DUTT, J. 1. THIS Court has heard the learned Advocates for the respective parties. The hearing has been concluded. The facts of the case, very briefly, are as follows:- The plaintiff/respondent filed a suit being Title Suit No. 148 of 1976 which was placed before the learned Additional Court of Munsif, Contai and renumbered as Title Suit No. 24 of 1986. In such suit the plaintiff prayed for a decree for declaration of the plaintiff's alleged right of easement over a certain plot No. 206 and also a decree for permanent injunction. The said suit was contested by the defendant/appellant by filing a written statement. The learned Trial Court by the judgement and decree dated 3rd September, 1986 passed in the said T.S. 24 of 1986 decreed the said suit in favour of the plaintiff/respondent. The defendant/appellant filed Title Appeal No. 479 of 1986 which was placed before the learned 1st Court of Additional District Judge, Midnapore and the said learned Judge by judgement and decree dated 27 January, 1988 dismissed the said appeal, being Title Appeal No. 479 of 1986. The defendant/appellant has challenged the impugned judgement and decree passed by the learned Lower Appellate Court by way of filing the present Second Appeal being S.A. 159 of 1989. The following are the substantial questions of law which were framed by this Court on which this appeal has been heard. "(1) Whether or not the learned Lower Appellate Court committed a substantial error in practically disposing of the entire appeal only on the basis of the fact that DW2 has stated in his cross-examination that during the rainy season all the "ails" and "Jal" lands are submerged in water when there is nothing on record to prove that such "ails" and "Jal" lands cannot be used at all. (2) Whether or not the Learned Lower Appellate Court committed a substantial error of law in dismissing the title appeal when there is no finding that the necessity to use the defendant's land is an absolute necessity and the plaintiff cannot enjoy his property without going through the property of the defendant at all times. (2) Whether or not the Learned Lower Appellate Court committed a substantial error of law in dismissing the title appeal when there is no finding that the necessity to use the defendant's land is an absolute necessity and the plaintiff cannot enjoy his property without going through the property of the defendant at all times. (3) Whether or not the learned Lower Appellate Court committed any substantial error of law in not considering the fact that two separate plots of lands comprised in two different khatians were acquired by the plaintiff and the defendant respectively by purchase and there was no severance of a single tenement." 2. THE learned Advocate appearing on behalf of the defendant/appellant has submitted that even though the learned Trial Court had made some discussions with regard to the merits of the case in its judgement, the learned lower appellate Court has miserably failed to discuss the materials on record before dismissing the defendant's appeal. According to the said learned Advocate, being the last Court of facts the learned lower appellate court ought to have considered the pleadings of the parties and the materials on record in much greater length, but the learned lower appellate court has not done so. The learned Advocate submitted that the learned lower appellate court dismissed the appellant's appeal only on the ground that one of the defendant's witnesses had stated in evidence that 'ails' and the paddy fields which are used by the plaintiff/respondent for the purpose of reaching the public pathway from his house and vice versa has become submerged in water during the rainy season and therefore such ails/paddy field cannot be deemed to be an alternative route for the plaintiff's egress and ingress from and to his Plot No. 204. The learned Advocate for the appellant submitted that simply on this ground only the learned lower appellate court could not have dismissed the appeal. The said learned Advocate submitted that the Plot No. 204 which belongs to the plaintiff/respondent pertains to a certain khatian and such khatian is quite different from the khatian under which Plot No. 206 is recorded and this is not a case of a single tenement being severed into two parts and the learned lower appellate court totally failed to consider this aspect of the matter and the effect of such fact. According to the said learned Advocate, the learned lower appellate court could not have applied the principles of easement in the present case. 3. THE said learned Advocate further submitted that there is nothing in the impugned judgement and decree to show that the learned lower appellate court had adverted to the question as to whether the alleged necessity of the plaintiff to pass through Plot No. 206, which belongs to the defendant/appellant, is an absolute necessity or not. According to the said learned Advocate unless the plaintiff proves that such necessity is an absolute necessity, the plaintiff is not entitled to obtain any decree for declaration of such alleged easement right. The learned Advocate further submitted that the learned lower appellate court was wrong in giving much emphasis to the statement of the DW-2 with regard to the water logging in the rainy season in respect of those ails and the paddy field since such statement by the D.W. 2 cannot be deemed to be an admission on the part of the defendant himself. The said learned Advocate submitted that mere convenience is not the test but the question with regard to the alleged easement has to be decided on the test of absolute necessity. The said learned Advocate also submitted that even though both the courts below have decreed the suit, this Court should interfere in the Second Appeal with the impugned judgements and decrees since the learned courts below failed to consider the material evidence on record and the learned lower appellate court has not even considered the materials on record sufficiently. 4. THE said learned Advocate cited a decision reported at AIR 1979 Calcutta 97 and referred to Paragraph 12 of the reports in support of his contention that even though the Indian Easement Act does not apply to the State of West Bengal but the principles as laid down therein do apply. The said learned Advocate cited a decision reported at AIR 2001 Allahabad 334 and referred to Paragraph 42 of the said reports wherein the Hon'ble Court has been pleased to hold that the admission of a witness cannot be treated as an admission of a party and is not binding on the party. He has referred to a decision reported at AIR 1984 Orissa 97 and referred to paragraph 10 of the said reports. He has referred to a decision reported at AIR 1984 Orissa 97 and referred to paragraph 10 of the said reports. In paragraph 10 of the said reports, the Hon'ble Court was pleased to observe that the easement of necessity according to Section 13 of the Indian Easements Act arises only where by a transfer, bequest or partition, a single tenement is divided into distinct and separate tenement and any of the separate tenements is so situated that it cannot be used at all without enjoying an easement over the other such tenement or tenements. 5. THE said learned Advocate cited a decision reported at AIR 1956 Madras 584 in support of his contention that an easement of necessity is an easement without which the property cannot be used at all and not merely one for the reasonable enjoyment of the property and in considering questions of easements of necessity, convenience is not the test but absolute necessity. The said learned Advocate has referred to another decision reported at AIR 1962 Andhra Pradesh 84 and reference was made to Paragraph 28 of the said reports wherefrom it appears that in the said reports a similar case arose where a certain track was difficult to be used during rainy season and it was not a convenient means of access through such track during the rainy season. The Hon'ble Court in the said reports was pleased to hold that it was not a convenient means of access but the respondent in the said case could not acquire any right of easement of necessity under Section 13 of the Easements Act. The said Hon'ble Court was also pleased to observe that an easement of necessity is an easement without which the property retained could not be used at all and not one merely necessary to the reasonable enjoyment of the property. 6. THE said learned Advocate cited another decision reported at 2000(5) SCC 652 in support of his contention that where there are glaring inconsistencies and contradictions in the evidence and issues raised are serious, the High Court can exercise its jurisdiction even at the second appellate stage to set things right even though there may be concurrent findings of fact by the learned lower courts. The learned Advocate appearing on behalf of the plaintiff/respondent submitted that the plaintiff/respondent has been using such Plot No. 206 for the purpose of egress and ingress from and to his Plot No. 204 and the defendant/appellant does not have any right to disturb the plaintiff/respondent in this regard. He has further submitted that there is no alternative way of egress and ingress so far as the plaintiff is concerned. He has cited a judgement reported at 91 CWN 441. In Paragraph 13 of the said reports it appears that the Hon'ble Court was pleased to observe that as a matter of fact, the door of one of the bath rooms really leads to the passage concerned and there is no other access to the said bath room except through the passage and both the learned courts below in the said case came to the finding that the user of the said passage is essentially necessary for the effective enjoyment of a certain premises. The facts of the said reports are quite distinguishable from the facts of the instant case. The learned Investigation Commissioner has recorded the fact that the plaintiff/respondent has an alternative way for the purpose of egress and ingress but such alternative way is not convenient to be used during the particular season. 7. THE learned Commissioner found that such alternative way which can be availed of by the plaintiff/respondent is a circuitous one and is not the shortest distance between a certain Plot No. 172 and the said Plot No. 204 and that the :- "geometrically shortest possible route may be prepared over Plot No. 206 to reach Plot No. 204 from Plot No. 172, if betel nut trees and various plants standing at adjacent south of the proposed passage are cut away and eroded tank portion filled up". Even though the learned Trial Court has made some discussions with regard to the merits of the case, the learned Trial Court has failed to take into consideration this aspect of the observations of the learned Investigation Commissioner. One may wonder as to whether or not such path way existed in the past since the learned Investigation Commissioner came to the conclusion that such path way "may be prepared" and it further appears that trees and plants are covering the land in question. One may wonder as to whether or not such path way existed in the past since the learned Investigation Commissioner came to the conclusion that such path way "may be prepared" and it further appears that trees and plants are covering the land in question. Thus, the decision in the said reports being 91 CWN Page 441 cannot be of any assistance to the plaintiff/respondent in the instant case. 8. THE learned lower appellate court has also not considered this aspect of the matter. In fact the learned lower appellate court, apart from taking into consideration the evidence of DW-2 regarding water logging, has not adverted its mind to the other aspects of the case at all. Being the last court of facts the learned lower appellate court ought to have gone into such questions and decided the matter considering the entire materials on record. Since it is not at all clear as to whether or not the necessity claimed by the plaintiff is an absolute necessity and the learned lower appellate court has also not decided such question effectively, this Court is of the view, considering the submissions made by the learned Advocates for the respective parties and the decisions cited at the bar as aforesaid, that the matter should be remanded back to the learned lower appellate court for a fresh decision of the case in the light of the observations made in this judgement. While considering afresh the issues involved in the present dispute, the learned lower appellate court will consider the materials already on record and may, if it so thinks fit, pass appropriate orders for appointment of another Investigation Commissioner to hold investigation in respect of the properties in dispute on the points as may be deemed to be appropriate by the learned lower appellate court. In the event the learned lower appellate court decides to hold a fresh Investigation Commission in the matter, the learned lower appellate court is requested to make an endeavour to complete such investigation process including the submission of the Investigation Commissioner's report as early as possible and thereafter proceed to decide the appeal as early as possible according to law. 9. THE impugned judgement and decree passed by the learned lower appellate court is set aside and the matter is remanded back to the learned lower appellate court as already indicated above. 9. THE impugned judgement and decree passed by the learned lower appellate court is set aside and the matter is remanded back to the learned lower appellate court as already indicated above. The lower court records be sent back to the learned court below concerned by special messenger and such special messenger cost shall be put in by the appellant within two weeks. The second appeal is disposed of. There will, however, be no order as to costs. 10. URGENT certified xerox copy of this judgement, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.