RAHIMAN BIBI Vs. KASEM SK. & ORS.

JUDGEMENT

(1.) Affidavit of service filed by the petitioner in court today be retained with the record.

(2.) The petitioner is the plaintiff in a suit in which the plaintiff claimed a declaration over schedule 'Kha' property as a village pathway and injunction restraining the defendants/opposite parties from interfering with the enjoyment of the said village pathway leading to a pond.

(3.) It appears that the application filed under Section 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code was rejected by the learned Civil Judge (Junior Division) at Bolpur on the ground that the plaintiff seeking to establish a right over 'kha' schedule property by virtue of long use does not automatically follow only by establishing title over 'ka' schedule property and there is no material to show existence and long use of the 'kha' schedule as a village pathway and at this stage it is not possible to form any opinion in favour of the plaintiff with regard to the existence and long use of the 'kha' schedule passage claimed to have been used by the plaintiff. The petitioner being aggrieved preferred an appeal.