SAVITRI DEVI JILLIWALLA Vs. SAVITRI DEBI SHARMA

JUDGEMENT

(1.) Heard further argument and the judgment is delivered in open Court as follows.

(2.) Defendant Nos.1 to 4 (some of them being represented through their legal representatives) are the appellants challenging to the judgment and decree passed by the learned Munsif, First Court, Cuttack on 16.05.1981 in Title Suit No.43 of 1976 and by learned First Additional District Judge, Cuttack on 05.08.1989 in Title Appeal No.66 of 1981. Plaintiffs are the respondents 1 and 2 in the appeal before the First appellate Court so also in this Court. The dispute is relating to right of easement asserted by the defendants/appellants and denied by the plaintiffs with respect to plot No.424/1200, a passage having 3, 4" on North-South and length of about 65' East-West connecting the plot No.424 and other plots adjacent to that up to the Tirthananda Lane. There is no dispute about the title and possession of the plaintiffs over the disputed plot, which has been recorded as 'Rasta'. Plaintiffs filed the suit with the prayer to declare title of plaintiff No.1 over the disputed land, confirm the possession thereof and alternatively to grant relief of recovery of possession and also to injunct the defendants from trespassing into the suit land or to disturb their peaceful possession over that property in any manner whatsoever. In the above context, plaintiffs deny right of easement of the defendants No.1 to 4 over the suit plot. On the contrary, in the written statement defendants claimed the right of easement of necessity and alternatively stated that since originally the property was belonging to their family before it was alienated long back, the right of user of the passage (land) was retained by them and they utilize the said passage for the use of scavengers, drainage of waste water and to negotiate with the road by the female folks and therefore they have perfected their right of users by prescription if not of necessity. On the basis of the said pleadings, trial Court framed the following issues :

(3.) In course of submission, being alive to the provision of Section 100, C.P.C., appellant argues that Ground No.(C) only contains the substantial question of law and Others are mixed with factual aspect and accordingly the Second Appeal be disposed of on the question of law in Ground no.(C). That narrows down the arena of dispute to be considered in this Second Appeal.