NIRMAL DAS Vs. PANCHANAN BANERJEE

JUDGEMENT

(1.) Appellants being the plaintiffs have preferred this appeal against two judgments and decrees having concurrent findings of the learned Courts below who have dismissed the suits for declaration of easement right in respect of a passage situates in between the premises Nos. 100A and 100B. D.C. Dey Road belonging to the plaintiffs on the one hand and premises Nos. 100/1A and 100/1B D.C. Dey Road belonging to the defendants on the other hand. The said passage situates on the western side of the premises of the plaintiffs/appellants. The plaintiffs/appellants claim that since the date of purchase of their property by their predecessors-in-interest the aforesaid passage is being used uninterruptedly as the only passage for egress and ingress of their premises till 1981 when the defendants all of a sudden obstructed the plaintiffs from using the said passage and thereby their right, title and interest in easement right has been denied. The defence of the defendants/respondents in substance is that there was no existence of passage. The aforesaid passage is part and parcel of their own property and they have purchased from their vendor. But in 1964 during communal riot the defendants allowed the plaintiffs to use the said passage on leave and licence and it has been revoked in 1981. As such there is no question of easement right.

(2.) Both the learned courts below have come to findings that the plaintiffs/appellants have neither acquired easement in the said passage by prescription nor the said passage is required to be used as of necessity. It has been further held by the learned Courts below that the said passage is part and parcel of the property of the defendants/respondents.

(3.) Mr. Sudhis Dasgupta, learned Senior Advocate, appearing in support of the appeal, submits though it is a concurrent fact finding still should interfere with fact findings as both the learned Courts below approached wrongly and without understanding real issue involved. It is also contention of Mr. Dasgupta that the finding and conclusion of both the learned Courts below is based on surmises and conjectures and without considering evidence adduced by the parties.