RAGHUNATH BARDHAN Vs. BISWANATH BARDHAN

JUDGEMENT

(1.) The facts which have given rise to this appeal are briefly these : The unsuccessful defendant in a suit for partition is the appellant. The sole plaintiff and the sale defendant represent two branches of the same family. Admittedly they are governed by Hindu Law. They are two brothers, being sons of one late Gandharba Bardhan. A partition was effected by metes and bounds among the several co-sharers in Title Suit No. 5 of 1962 of the Court of the then First Addl. Subordinate Judge, Cuttack. The plaintiff and the defendant being the descendants of a common ancestor were treated to be one unit and they were together allotted Ac.O.118 decimals out of Khata No. 845 and Ac.0.180 decimals out of Khata No. 846 in the final decree proceeding arising out of the said suit, the final decree being scaled and signed on 14th of August, 1963. Subsequently the plaintiff and defendant effected another partition between themselves inter se in the year 1965 by means of a registered partition deed, Ext. 1 dividing the properties allotted to their share jointly in the aforesaid final decree. By the said partition, the properties described in Schedule B of the plaint was allotted to the share of the plaintiff and the properties described in Schedule C of the plaint was allotted to the share of the defendant. It is needless to say that there is absolutely no dispute with regard to the aforesaid allotments and both the parties are enjoying the properties allotted to their shares as the exclusive owners thereof. The dispute in the present case however centres round a strip of land measuring Ac.0.45 decimals left out as common passage for joint use of both the parties in the partition effected among themselves. This common passage appertains to plot No. 1532/3263 of Hal Settlement and is the only subject- matter of dispute. The residential house allotted to the share of the plaintiff admittedly adjoins a public road running on its South, commonly known as Ajij Khan Lane: whereas the house of the defendant abuts the private passage and connects on the Northern side lane commonly known as Jhanjirimangala Lunia Sahi Lane. According to the plaint case, the plaintiff only used the said Ajij Khan Lane for his egress and ingress; whereas the defendant used the Lunia Sahi Lane abutting his house for egress and ingress. According to the plaintiff, the defendant seldom uses the passage and there is no occasion for the plaintiff also to use the common passage as the house of the plaintiff abuts Ajij Khan Lane. Thus the plaintiffs case is that the disputed strip of land has lost its characteristic of passage by efflux of time and more so the defendant has amalgamated a portion of that strip of land in his homestead by making construction over the same and raising a vegetable garden thereon, and therefore it is a fit case where the strip of land left out as common passage in the partition effected among the parties as per Ext. 1 should be partitioned between the two branches for inter se convenience.

(2.) The defendant, however, repudiated the averments made in the plaint and put up a case that the Ajij Khan Lane is the main road and unless he was permitted to approach the said road through the common passage, it would cause irreparable loss and hardship as also inconvenience to him. It was categorically stated that the school bus and other transport were only available at the Ajij Khan Lane and the children of the defendant had to use the common passage to approach the Ajij Khan Lane for availing transport. It was also stated that a portion of the property abutting the Ajij Khan Lane was also allotted to the defendant and the common passage was the only convenient approach to the said property. The Jhanjirmangala Lunia Sahi Lane is a narrow lane and no vehicle can conveniently approach the said lane and added to it, it would be most inconvenient to the defendant to use the property allotted to his share abutting the said Ajij Khan Lane, if he is not permitted to use the said common passage. The defendant emphatically submitted that considering all these facts and circumstances it was mutually decided that the strip of land which is now in dispute had to be kept as a common passage and the same under no stretch of imagination could be partitioned.

(3.) On the basis of the pleadings of the parties, the trial Court framed as many as nine issues and after discussing the evidence, both oral and documentary, came to the conclusion that the defendant had the necessity to use the common passage to approach the Ajij Khan Lane, though the plaintiff might not have the necessity to use the same to approach the Jhanjirmangala Lunia Sahi Lane. The trial Court took into consideration the fact that the children of both the families had to come to Ajij Khan Lane to catch the school bus and water pipe line to the defendants house also passed through that lane. One the basis of such findings the trial Court concluded that the suit strip of land had not lost its characteristic of common passage and the defendant had the necessity to use the same. The trial Court on the basis of the spot-map exhibited in the case as also the other evidence observed that as the suit passage was not having equal breadth throughout, dividing it into two equal shares would be practically not possible and dismissed the suit.