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2014 DIGILAW 883 (GAU)

LANKESHWAR DEKA v. NARAYAN BAISHYA

2014-09-18

N.CHAUDHURY

body2014
ORDER (Oral) This Second Appeal has been preferred by the plaintiffs challenging the First Appellate Court judgment and decree whereby the suit of the plaintiff was dismissed by the First Appellate Court reversing finding of the learned trial court decree. [2] The plaintiff, Lankeshwar Deka, instituted Title Suit No.286 of 1992 in the Court of learned Munsiff No.3, Guwahati, stating that suit land measuring 1 Bigha was owned and possessed by him from its original owner Lohit Chandra Moral by registered sale deed No.60 of 1974 dated 04.01.1974. It is the case of the plaintiff that he was in the service of the Government of Assam and his service was a transferable one. He claimed to have retired on 01.07.1990 and thereafter, decided to raise a residential house on the part of the aforesaid land measuring 1 Bigha. But the principal defendant No.1 encroached the C Schedule land measuring 4 Chatarks by force and converting the same into a path. Land described in Schedule B & Schedule C are parts of Schedule A which is claimed to have purchased by the plaintiff on 04.01.1974 by registered sale deed No.60 of 1974. The plaintiff claimed to have approached the learned Executive Magistrate by invoking Section 145/ 146 of the Code of Civil Procedure leading to restoring of 432 of 1991 but the same was against him on 01.08.1992 observing that C Schedule land is a public path in use by the people of locality for connecting Barbari Hills village to the P.W.D road. Aggrieved by the order passed by the Executive Magistrate, plaintiff filed the suit praying for declaration of his right, title and interest over Schedule B land and for confirmation of possession there on. On the order passed by the learned trial court proforma defendants No.1 to 8 were impleaded in the case who also participated in the proceeding. In the written statement, it was the specific stand taken by the defendants that Schedule C land is a part of public path which connects the P.W.D. road with Barbari Hills Gaon over the land of so many parties including the defendants. While land owners of other lands do not have any objection for use of the land by the public for over 40 years, it is the plaintiff alone who has been raising objection after 40 years. The defendants prayed that the suit be dismissed with cost. While land owners of other lands do not have any objection for use of the land by the public for over 40 years, it is the plaintiff alone who has been raising objection after 40 years. The defendants prayed that the suit be dismissed with cost. Upon perusal of the rival contention of the parties the learned trial court framed as many as 7 issues which are quoted below: 1) Whether the suit is maintainable in law and facts? 2) Whether the suit is bad for non joinder of necessary parties? 3) Whether the suit is barred by limitation? 4) Whether the suit is properly valued and proper court fee has been paid? 5) Whether there exists public road over the disputed land from P.W.D. road to Barbari Hills and the same has been used by the villages from time immemorial? 6) Whether the plaintiff have right, title and interest over the Schedule B land and Schedule C land and whether the defendants and villagers have acquired easementary right over the suit land? 7) To what relief or reliefs the parties are entitled to under law and equity? [3] Out of the aforesaid issues, Issue No.5 & 6 are the most relevant one inasmuch as the same is concerned with adjudication as to nature and character of Schedule C land. The plaintiff adduced 6 documents and examined 3 witnesses. On the other hand, the defendants examined 4 witnesses and adduced 14 documents to prove their respective case. [4] The learned trial court after perusal of the materials available on records and after hearing the learned counsel for the parties held that the plaintiff undoubtedly purchased the suit land by registered sale deed dated 04.01.1974 and no one has raised any doubt about title of the plaintiff over scheduled land. Without making any discussion in regard to evidence led by the defendants oral and documentary, the learned trial court held that road exists since 1990-91 and not in time immemorial and/ or for 40 years ago as claimed by the defendants in the written statement. Having found the same, learned trial court decreed the suit of the plaintiff in its entirety by judgment and decree dated 23.12.1997. Having found the same, learned trial court decreed the suit of the plaintiff in its entirety by judgment and decree dated 23.12.1997. Five of the defendants including the defendants No.1 preferred Title Appeal No.2 of 1998 in the Court of learned Civil Judge (Senior Division) No.2, Kamrup, challenging the finding of the learned trial court in regard to nature and character of Schedule C land. The appellants claimed that Schedule C land was part of a public path in use by the people of Barbari Hills village for more than 40 years. Having heard the learned counsel for the parties, the learned First Appellate Court allowed the appeal by his judgment and decree dated 30.03.2002 holding that on the basis of the deposition made by P.W.2 & P.W.3 it has been established that the scheduled land is a road and is being used by the public for over 20 to 25 years. The learned First Appellate Court also observed that, the trial court did not consider the oral and documentary evidence of the 4 witnesses examined by the side of the defendants and so, the trial court’s judgment and decree is vitiated. The First Appellate Court, therefore, set aside the decree passed by the learned trial court and dismissed the suit of the plaintiff holding that Schedule C land is a part of public path being used by public for over period of limitation for connecting Barbari Hills Gaon to the P.W.D. raod. It is this judgment which has been brought under challenge in this Second Appeal. [5] While admitting the Second Appeal on 13.03.2002 this Court framed only one substantial question of law and the same is quoted as follows: Without acquisition by the competent authority under any Central/ State Project by proper official declaration/notification and without paying compensation to the owner, whether a portion of periodic patta land can be declared and used as a public path? [6] I have heard Mr. Sheelditya, learned counsel for the appellants. None appears for the respondents although names of the learned counsel have been disclosed in the cause-list. I have perused the lower Courts records including the exhibits and the depositions of witnesses of both sides. [7] The plaintiff had a specific case before the learned trial court. [6] I have heard Mr. Sheelditya, learned counsel for the appellants. None appears for the respondents although names of the learned counsel have been disclosed in the cause-list. I have perused the lower Courts records including the exhibits and the depositions of witnesses of both sides. [7] The plaintiff had a specific case before the learned trial court. He stated that on 04.01.1974, he purchased the suit land by registered sale deed No. 60 of 1974 from the original owner Lohit Chandra Moral and came into possession thereof. Thereafter, by engaging someother persons he was deriving usufruct from the said land by agriculture as he himself had to remain out of station being a Government servant in a transferable post. Having retired on 01.07.1990 he came back to village and desired to make construction of a residential house on a part of the land. According to him in the meantime, defendant No.1 Narayan Chandra Baishya had established a brick kiln industry nearby on an adjoining plot and he used to make use of more or less 4 Lechas of land belonging to the plaintiffs for transportation of bricks from his factory. Narayan Chandra Baishya converted about four lechas of land into path by laying bricks without paying heed to the objections raised by the plaintiffs. Compelled, plaintiff initiated a proceeding under Section 145 Cr.P.C. before the learned Executive Magistrate at Guwahati. The Executive Magistrate called for report of Circle Officer and thereupon, passed Exhibit 3 order. On perusal of the Exhibit 3, it shows that Executive Magistrate after going through Circle Officer’s report was satisfied that Schedule 3 land was a public path and used by the people of the area at large for a period over 20 to 25 years so as to connect the for Barbari Hills Gaon with the P.W.D. road. The two witnesses, namely, P.W. 2 & P.W. 3 were examined by the plaintiff himself. In course of cross-examination witnesses of the plaintiff deposed that the public path was in existence for a period over 20 to 25 years and that people of Barbari Hills Gaon was making use of it for the purpose of coming to the P.W.D. road. The finding of the learned First Appellate Court, therefore, that the witnesses of plaintiff themselves supported the case of the defendants that the suit land is a public path cannot be said to be perverse. The finding of the learned First Appellate Court, therefore, that the witnesses of plaintiff themselves supported the case of the defendants that the suit land is a public path cannot be said to be perverse. The only point that is raised is that no land can be used as public path without there being a declaration/ notification by the State/ Central Government. Such an argument made by the learned counsel for the appellant leading to framing of the substantial question of law framed in this case, does not appear to be convincing. Section 25 of the Limitation Act itself speaks of extinguishment of title of the real owner if his land is used in assertion of easement of necessity for a period of 25 years. Extinguishment of title of the original owner by prescription as provided under Section 25 of the Limitation Act is the possible answer to the substantial question of law framed in this case. Once a party succeeds to make out a case by appropriate pleadings and can proof that a particular land has been in use as an easement of necessity without interruption for twenty years or so, in that event right to access and use shall be absolute [8] No order as to cost. Draw up decree and sent down the records immediately.