PRASANNA KUMAR NAYAK Vs. ANNAPURNA DAS

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgment and decree passed by the learned Additional District Judge, Jagatsinghpur in R.F.A. No.33 of 2003 by which the learned lower appellate court allowed the appeal and reversed the judgment and decree passed by the learned trial court. The appellant as plaintiff filed T.S. No.42 of 2000 before the learned Civil Judge (Jr.Division), Jagat singh pur for declaration of his right of passage over the suit land, for permanent injunction against the defendants restraining them from raising any construction over the suit land and/or from interfering and obstructing the right of user of the plaintiff over the suit land in any manner as well as for a decree for injunction directing the defendants to remove the brick pillars constructed over the suit land at their own cost.

(2.) THE appellant -plaintiff's case was that Hal Plot No.94/4672, 1413/4537 and 1413 and other corresponding plots under Hal Khata No.707 of Village -Makundapur belonged to one Prahallad Panda, whose name was recorded in the finally published Record of Rights of major settlement. Hal Plot No.94/4672 comprising an area of Ac.0.05 decs. is a narrow strip of land connecting to the main public road running from Cuttack to Machhagan. The western side of the said strip of land corresponds to Hal Plot No.49/4672 which also adjoins the main public road whereas the eastern side adjoins to Hal Plot No.1413/4537. The recorded owner Prahallad Panda, in order to transfer his lands under Hal Khata No.707 bearing Plot No.1413/4537 and other surrounding contagious lands, exclusively set apart the narrow strip of land bearing Hal Plot No.94/4672 and Ac.0.02 decs. from western side of Hal Plot No.1413/4537 as road enabling the transferees to approach their respective purchased lands from the public road. The above passage is the suit property described in Schedule 'A' of the plaint. Prahallad Panda being in need of money sold Ac. 0.05 decs. 2 kadis of land from southern side of Hal Plot No.1413 and Ac.0.02 decs. 8 kadis from Hal Plot No.1413/4537 measuring, in toto, Ac.0.06 decs and kadis along with the right of passage over the suit land for consideration, to the plaintiff, by means of a registered sale -deed dated 22.04.1985 and delivered possession thereof. The plaintiff alleged that it was agreed between the plaintiff and his vendor that the plaintiff and his family members shall exercise their right of passage over the suit land in order to approach their purchased homestead land and neither the vendor nor their successors, agents or anybody on their behalf shall interfere/obstruct such right of user of passage by the plaintiff. The plaintiff claimed that after his purchase, he developed the purchased land appertaining to Plot Nos. 1413 and 1413/4537 and raised the height of the land higher than the public road. Thereafter, he mutated the said purchased land in his name. After obtaining necessary permission from the concerned authorities, the plaintiff constructed his residential house over his purchased land and is residing therein with his family members, which has also been assigned with a Municipal Holding Number. While the plaintiff was continuing to use the suit land as his passage for ingress and egress from his residential house, the defendants who have got their homestead land to the adjoining north of the suit land, with an oblique motive, to grab the suit land, erected some brick pillars forcibly over it with the assistance of some anti -social ailments of the locality and further threatened to enclose the passage by encroaching over the suit land and amalgamate the same with their homestead land. The plaintiff, therefore, filed the suit for the reliefs as stated above.

(3.) THE defendants filed their written statement disputing the area of Plot No.94/4672 and also denying the allegation that the vendor of the plaintiff had given right of passage over the suit land to the plaintiff under the registered sale deed dated 22.04.1985. They stated that in the said sale deed the vendor had given only a license to the plaintiff to use the suit land as a passage, but has not transferred the right, title and interest over the said land in favour of the plaintiff. The defendants claimed that prior to execution of the sale deed in favour of the plaintiff, the vendor Prhallad Panda already alienated Ac.0.01 decs. of land to one Jhumalata Sahoo, who for legal necessity transferred Ac. 0. 01 decs. out of the suit property to the defendant no.1 by registered sale -deed on 06.08.1985 and also delivered possession of the same to the defendant no.1. It was the specific case of the defendants that the vendor Prahallad Panda although gave a license for right of passage to the plaintiff, he did not alienate his right, title and interest in respect of Ac.0.03 decs. of land out of the suit plot. The defendant further pleaded that it is an admitted fact that the suit land was a low land and leaving aside Ac.0.01 decs. of land the rest Ac.0.03 decs. of land was filled up and the level of the land was raised and on humanitarian point of view, as a good neighbor and since both the plaintiff and defendants are disciples of common religious thoughts, the plaintiff was permitted to use a part of land as a pathway and not the entire Ac.0.05 decs. of land, i.e., the suit land and if the court feels that there is necessity of path way to be given to the plaintiff out of the suit plot, i.e., a portion of the suit plot should be allotted as path way as claimed by the plaintiff. On the above pleadings the learned trial court after framing the issues came to the following findings: -