SAKINA BEWA Vs. AKKEL ALI

JUDGEMENT

(1.) The defendant is the appellant against a judgment of affirmation. The respondent No.1 Akkel Ali filed a suit being Tittle Suit No.172 of 1990 against principal defendant /appellant Sakina Bewa and proforma defendant (respondent Sirajuddin Sk.) praying for declaration of title and permanent injunction. The plaintiff's case was that out of 11 decimals in suit plot No.4068 proforma respondent Sirajuddin possessed 7 decimals of land lying in the western portion of said plot. The defendant No.1 got patta of two decimals of land in the suit plot lying to the north east portion. Though plaintiff purchased 2 1/4 decimals of land from owners but in measurement it was found to be two decimals lying in the south eastern portion of the suit plot No.4068. The principal defendant having no right, title and interest or possession in any portion of said two decimals of land under possession of plaintiff was trying to encroach upon a portion of the same and hence was the suit for declaration of title and injunction.

(2.) Defendant No.1/appellant filed a written statement alleging that she was in possession of two decimals of land lying in the north east portion of the suit plot for long 30 years and that out of two decimals of land of the plaintiff she was using one decimal of land as pathway for going to the main road lying to the south of plaintiff's land. It is further case that it was the only pathway from her house for going to the public pathway and that plaintiff had no right to obstruct her in using said pathway.

(3.) She has further claimed that she already filed a Misc. Case being No.24 of 1990 in the Court of learned Munsif Lalbag for purchase of the plaintiff's two decimals of land namely suit plot by exercising her right of pre-emption. Both sides adduced evidence, both oral and documentary, in the learned Trial Court. After contested hearing learned Trial Court declared plaintiff's right, title and interest and possession over 2 1/4 decimals of land (minus) 4 ft. X 43 ft. being a passage. The defendant was restrained from disturbing the plaintiff's peaceful possession in the suit property though he has a right of use of said passage only. The principal defendant / appellant being aggrieved filed an appeal being Title Appeal No.44 of 1998 which was dismissed on contest. Hence, is this second appeal at the instance of the principal defendant.