JOGESWAR GAYAN Vs. MOTI RAM BORAH

JUDGEMENT

(1.) This second appeal is directed against; the judgment and decree dated 28.6.1994 passed by the learned Assistant District Judge, Nagaon in Title Appeal No. 20 of 1981. The learned First Appellate Court dismissed the appeal affirming the: judgment and decree dated 9.6.1991 passed by the learned Munsiff No.2, Nagaon in Title Suit No. 110 of 1979.

(2.) This appeal was admitted by this Court for hearing on the following substantial question of law :- "Whether the right which the plaintiff had acquired by openly and continuously using the path way could be affected by a subsequent purchase of the land under Exhibit-6 which provides an access to the PWD road."

(3.) The appellant as plaintiff filed the aforesaid suit for declaration of right of passage based on easement over the pathway described in Schedule-A to the plaint and for eviction of the defendants, the respondents herein, therefrom. The appellant pleaded that they are using this pathway for ingress and outgress to their residence situated on the land covered by Dag No. 143 from the time of their predecessor. It was further pleaded that there is no alternative path to connect his residence with the P.W.D. Road. The respondents, however, denied the allegation and pleaded existence of alternative path. The learned Trial Judge, on appreciation of the evidence adduced by the parties, dismissed the suit. The learned First Appellate Court affirmed the judgment and rejected the appeal preferred therefrom. Hence this second appeal.