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2015 DIGILAW 827 (GAU)

Girin Ch. Das v. Niranjan Baruah

2015-07-13

A.K.GOSWAMI

body2015
JUDGMENT : Heard Mr. D. Mazumdar, the learned senior counsel appearing for the appellant/defendant No.2 and Mr. K.K. Mahanta, learned senior counsel for the respondent No.1/plaintiff. 2. This Second Appeal is preferred against the judgment and decree dated 23.7.2004, passed by the learned Civil Judge (Sr. Division) No.1, Kamrup, Guwahati in Title Appeal No.16/2004, dismissing the Appeal preferred by the present appellant as well as the defendant No.1 in the suit, against the judgment and decree dated 30.1.2004, passed by the learned Civil Judge (Jr. Division) No.2, Kamrup in Title Suit No.219/1992, decreeing the suit of the respondent No.1/plaintiff. 3. The Appeal was admitted to be heard by an order passed on 15.12.2004 on the following substantial question of law:- “1. Whether the lower appellate Court erroneously dismissed the appeal preferred by the appellant/defendant by overlooking relevant material facts relating to right of easement accrued to him under the provision of law which was specifically pleaded in the written statement.” 4. The plaintiff filed the suit praying for declaration of right, title and interest over land measuring 4 Kathas 17 Lechas, covered by Dag No.568 of K.P. Patta No.285 of village – Azara and for confirmation of possession and alternatively, for recovery of possession thereon, in case he was found to be out of possession, by evicting the defendants, prayer for injunction, etc. 5. The case set up by the plaintiff in the plaint, in substance, is that out of land measuring 2 Bighas 9 Lechas in Dag No.568 of K.P. Patta No.285 belonging to him, 1 Bigha 12 Lechas was acquired by the Government for the purpose of expansion of National Highway by a notification dated 22.11.1960 and the plaintiff was left with the suit land measuring 4 Kathas 17 Lechas in Dag No.568. The land was agricultural land and after acquisition it was not a profitable proposition to undertake agricultural activities and therefore, the plaintiff was intending to make the land fit for residential purpose. The defendants are neighbours of the plaintiff. The defendant No.1 encroached a portion of the suit land on or about 16.5.1990 and constructed a verandah on a portion of the suit land and on protest made by the plaintiff, the defendant No.1 asserted that the land was Sarkari land. The defendants are neighbours of the plaintiff. The defendant No.1 encroached a portion of the suit land on or about 16.5.1990 and constructed a verandah on a portion of the suit land and on protest made by the plaintiff, the defendant No.1 asserted that the land was Sarkari land. The land was demarcated through revenue staff but the defendant No.1 refused to act upon the demarcation unless the demarcation is made by the Circle Officer himself. However, he removed the bamboo fence and on 6.6.1990 raised a path through the suit land leading from his land to the National Highway-37 from East to West. This act of defendant No.1 encouraged the defendant Nos.3, 4 & 5 and they dug up earth and raised a portion of the suit land for the purpose of using the same as a passage to the National Highway over the plaintiff’s land. Similar attempt was also made by the defendant No.2. Subsequently, the Circle Officer, Palasbari Circle also demarcated the boundaries of the suit land and consequent upon such demarcation made, the plaintiff asked the defendant No.1 to remove the portion of the verandah and asked the other defendants not to dig up earth from the suit land and use any portion of the plaintiff’s land as passage but no heed was paid to such request of the plaintiff. 6. The defendant No.1, defendant No.2, defendant No.3 and defendant No.4 filed their individual written statement. The defendant No.5 did not file written statement and the defendant Nos.6—9 filed a combined written statement. 7. At this stage, it is relevant to note that the suit was decreed by the learned trial Court, against which only the defendant No.1 and defendant No.2 preferred appeal. The appeal was also dismissed and presently, as noticed earlier, only the defendant No.2 has preferred this appeal. 8. The defendant No.2, in the written statement filed, stated that he had purchased a plot of land by a Regd. Sale Deed dated 16.3.1991. The pleaded case of the defendant No.2 is that there is no land of the plaintiff in front of the land of the defendant and the plaintiff is not in possession of the suit land or any portion thereof and after acquisition of the land, the National Highway Authority took possession of the entire land. Sale Deed dated 16.3.1991. The pleaded case of the defendant No.2 is that there is no land of the plaintiff in front of the land of the defendant and the plaintiff is not in possession of the suit land or any portion thereof and after acquisition of the land, the National Highway Authority took possession of the entire land. The road/path used by the defendant No.2 from his land to the National Highway is not through the land of the plaintiff but through Sarkari land. It is also pleaded that the manner of acquisition as indicated by the plaintiff that the land was acquired upto a distance of 75 ft. from the center of the National Highway-37 was also not correct. It is further pleaded that the path measuring about 20 ft. was in existence over last 15 years or so and presently he, and prior to him, his vendor was using the road/path and this path is the only passage to go to the National Highway. 9. Five issues were framed by the learned Trial Court. Issue No.2 was as to whether the plaintiff has right, title and interest over the suit land and the Issue No.4 was as to whether the defendants are in possession of the suit land. 10. The plaintiff examined seven witnesses and exhibited a large number of documents. The defendant No.1 examined himself as DW1. The defendant No.2 did not examine himself but his attorney-holder deposed as DW2. Two more witnesses were also examined by the defendants. 11. On consideration of the materials on record, the learned Courts below had come to the finding that land measuring 2 Bighas 9 Lechas in Dag No.568 belonged to the plaintiff and out of the said land, 1 Bigha 12 Lechas was acquired by the Government for expansion of National Highway-37. The plaintiff still had 4 Kathas 17 Lechas land with him and thus, he has right, title and interest over the said plot of land. It was also held that the plaintiff proved his possession over the same before he was dispossessed from some areas over which the path was constructed. 12. Mr. The plaintiff still had 4 Kathas 17 Lechas land with him and thus, he has right, title and interest over the said plot of land. It was also held that the plaintiff proved his possession over the same before he was dispossessed from some areas over which the path was constructed. 12. Mr. D. Mazumdar, learned senior counsel for the appellant has submitted that the defendant No.2 as well as his vendor and the other defendants in the suit were using the path for a long time and therefore, the learned Courts below committed error of law in decreeing the suit of the plaintiff. He has further submitted that the learned Courts below had ignored the pleading of the defendant No.2 with regard to the right of easement exercised by him and prior to him by his vendor. Non-consideration of material evidence on record in this respect has resulted in perversity, which led to decreeing the suit of the plaintiff. 13. On the other hand, Mr. K.K. Mahanta, learned senior counsel has submitted that the case of the appellant was that he was using Sarkari land and not the land of the plaintiff and therefore, there is no claim of easement against the plaintiff. While submitting that there is no sufficient pleading to sustain the plea of the appellant, it is also submitted that no counter-claim was filed making the Government a party to claim the right of easement. That apart, it is submitted by Mr. Mahanta that the defendant No.2 came into possession of his purchased land only in the year 1991 and there is no evidence at all in the evidence of DW2 with regard to using of the path by the appellant or by his vendor for a considerable long period of time. According to him, in the facts and circumstances of the case, substantial question of law is required to be answered against the appellant. 14. I have considered the submission of the learned senior counsel for the parties and have perused the materials and evidence on record. 15. The defendant No.2 did not set out in his written statement any plea of adverse possession. However, a faint plea of adverse possession was taken by the defendant No.1. 14. I have considered the submission of the learned senior counsel for the parties and have perused the materials and evidence on record. 15. The defendant No.2 did not set out in his written statement any plea of adverse possession. However, a faint plea of adverse possession was taken by the defendant No.1. Though the appeal was preferred by both the defendant No.1 and defendant No.2, the lower Appellate Court, inadvertently, had observed at one portion of the judgment that the appeal was preferred only by the defendant No.1. The Appellate Court had rejected the plea of adverse possession as the defendants had failed to establish such plea by adducing cogent and reliable evidence. 16. In his evidence, the DW2 had stated that the path leading to the land of the defendant No.2 is Government land and the said path was also in existence when the defendant No.2 had purchased the land. There is no other evidence of DW2 regarding existence of the path for a long time and also use of the said path for many years. There is also no evidence of easement of necessity. Even in the pleadings, it was stated that the road was in existence only for about 15 years. 17. Though the Indian Easement Act, 1882 (hereinafter referred to as ‘the Act’) is not in force in Assam, there is no dispute at the Bar that the principles underlying the provisions of the Act can be applied. Under Section 15 of the Act, where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such easement shall be absolute and the period of twenty years shall be taken to be the period ending within two years next before the institution of the suit, wherein the claim to which and period relates is contested. 18. 18. Under Section 25 of the Limitation Act, 1963, which deals with acquisition of easement by prescription, where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of water or other easement shall be absolute and indefeasible and where the property over which a right is claimed belongs to the Government, the period shall be thirty years. 19. In view of the pleadings and the state of evidence on record, I am unable to accept the submission of Mr. Mazumdar that the suit of the plaintiff ought to have been dismissed. I find no merit in this Appeal and accordingly, the same is dismissed and the substantial question of law is answered against the appellant. No cost. 20. The Registry is accordingly directed to return the L.C.R. with a copy of this order.