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2018 DIGILAW 872 (CAL)

Sadhana Ghosh v. Parbati Laha

2018-11-30

HARISH TANDON, SUBHASIS DASGUPTA

body2018
JUDGMENT : 1. The present appeal arises from concurrent finding of facts arrived at by both the Courts below. 2. The plaintiffs/respondents filed a suit for declaration of their easementary right over the ‘kha’ schedule property and permanent injunction restraining the defendants/appellants from closing out the said property and also raising any obstruction and/or hindrances in ingress and egress of the plaintiffs/respondents. 3. The facts emerged from the record are that the ‘kha’ schedule property is the only pathway leading from the house of the plaintiffs/respondents to the village main road, which is situated on the northern side of the said plot and the aforesaid factum was recorded in the CS Record of Rights. However, during the revised settlement, the CS plot no. 1925 was divided into four plots, out of which RS plot no. 1925/2391 comprising of 4 decimal of land was recorded in the name of the mother of the defendants/appellants. 4. It is the specific case of the plaintiffs/respondents that since the said road was merged and/or shown mingled with the RS plot, the defendants/appellants are taking advantage thereof and denying the plaintiffs/respondents of their access to their plot of land through such pathway. 5. The defendants/appellants obviously denied the stand of the plaintiffs/respondents and took a defence that the ‘kha’ schedule property was shown as ‘vita’ and/or dwelling house and, therefore, cannot be treated as pathway or a way meant for ingress and egress of anybody. It was indicated in the written statement that the plaintiffs/respondents have a pathway on the southern side of the plot no. 1930, which, in fact, being used by the plaintiffs/respondents for their access to their plot. 6. On the conspectus of the aforesaid stands taken by the respective parties, oral evidence was adduced and some of the statements recorded in the deposition are heavily relied upon by the defendants/appellants before this Court. 7. The trial court after taking into account the totality of the evidence and the respective stands taken in the pleading held that the ‘kha’ schedule property is the only means for access to the plaintiffs/respondents for ingress and egress of their property and, therefore, applied the doctrine of easement of necessity after ruling out the case of easement by prescription. 8. 8. During the currency of the suit, an application for appointment of a Commissioner to investigate the site was taken out by the plaintiffs/respondents, which was eventually allowed. It appears from the judgment of the trial court that two reports were filed by the Inspecting Commissioner touching upon the availability of any alternative pathway or the means of access to the plaintiffs/respondents. A further application was taken out by the plaintiffs/respondents for appointment of Survey Passed Commissioner to investigate the property, which was disallowed by the trial court. 9. Strangely enough, the defendants/appellants took a plea before the trial court that unless the investigation is done it is not possible to find out whether the plaintiffs/respondents have a right of easement of necessity. Even before us, a point has been taken that once the application for investigation has been rejected by the trial court, the judgment of both the courts suffers from illegality and/or infirmity as the core issue involved in the suit can only be conveniently decided upon an investigation being done in respect of the plots involved in the said suit. It is an bold attempt on the part of the defendants/appellants to approbate and reprobate at the same time. 10. It appears that the application for appointment of Survey Passed Commissioner for investigation was filed by the plaintiffs/respondents, which was dismissed obviously on the objection being raised by the defendants/appellants. It is, therefore, not open to the defendants/appellants to take a plea that unless the investigation is done, the primary issue involved in the said suit cannot be decided. If the litigant is blessed with an order, he cannot take a rebound and say that such blessings, in fact, becomes curse and, therefore, a right has accrued upon them to negate the claim of the other litigants. 11. It is succinctly argued by the learned Advocate for the defendants/appellants that the appellate court has failed to discharge its responsibilities and duties entrusted upon it in dealing with an appeal. To elaborate, it is submitted that the appellate court failed to take into consideration all the relevant points, which were urged by the respective parties and, in fact, have proceeded to dismiss the appeal in cursory manner. 12. Though we do not appreciate the manner in which the appeal is dealt with but we cannot find any infirmity and/or illegality in the ultimate decision of the appellate court. 12. Though we do not appreciate the manner in which the appeal is dealt with but we cannot find any infirmity and/or illegality in the ultimate decision of the appellate court. Though all the points have not been dealt with in lucid manner yet the appellate court did take such points into consideration and found the same unsustainable. 13. It appears from the record that the first witness of the defendants/appellants categorically admitted the right, title and interest of the plaintiffs/respondents in respect of a dominant tenancy and further held that the said witness has also admitted that there is only one pathway available to the plaintiffs/respondents for access to their property. Even the support was lend upon two reports of the Inspecting Commissioner, who clearly opined that there was no existence of a ‘khamar’ and/or ‘cowshed’ at the schedule property as it was found lying vacant. 14. Even if the first witness of the plaintiffs/respondents in the cross-examination stated that the cows are being kept there and sometimes used as ‘khamar’ but that does not appear to be of permanent nature as still the same was being used by the plaintiffs/respondents as pathway. 15. We, therefore, do not find that mere erroneous recording in the RS Record of Rights creates any substantial right into the defendants/appellants and simultaneously takes away the rights of the plaintiffs/respondents, which is well recognized under the statute. Entry made in the Record of Rights may have a presumptive value on the possession but cannot create or extinguish the title of the respective parties in respect of the immovable property. 16. We, therefore, do not find the involvement of substantial questions of law in the instant appeal. The appeal is, thus, dismissed. 17. There shall, however, be no order as to costs.