SHYAMALI CHAKRABORTY, Vs. SRI SADHAN CHAKRABORTY

JUDGEMENT

(1.) THESE appeals by the successors-in-interest of the original plaintiff, Bimalendu Chakraborty, are directed against the judgment and decree dated 23.05.2002 passed by the learned Civil Judge (Senior Division) No.2, Cachar at Silchar, in Title Appeal Nos.3/1994 and 5/1994, dismissing the former and partly allowing the later, by partly setting aside the judgment and decree dated 11.10.1993 passed by the learned Sadar Munsiff No.2, Cachar at Silchar in Title Suit No.120/1991.

(2.) THE predecessor-in-interest of the present appellants instituted the said suit praying for passing a decree declaring the plaintiff's prescriptive right of access and implied grant of necessity and easement over the path described in Schedule-3 to the plaint and also for permanent injunction restraining the defendants from interfering with the peaceful enjoyment or putting any obstruction therein, contending inter alia that Bimalendu Chakraborty, the original plaintiff, since the purchase of Schedule-2 land, vide registered deed of sale dated 20.02.1969, has been using the path, measuring 50 ft. 3 inch in length and 5 ft. in breadth, described in Schedule-3 to the plaint, which is over Schedule-1 land belonging to the defendants. The further pleaded case of the plaintiff is that the defendants, who are the plaintiff's close relatives, taking advantage of the temporary absence of the plaintiff and with a view to grab the plaintiff's land started creating disturbances and tried to raise illegal construction over the said path, so as to block the only ingress and egress to the plaintiff's land. It has also been pleaded that there is no path other than the path described in Schedule-3 leading to the plaintiff's land, which path the plaintiff has been enjoying for more than 20 years peacefully without any obstruction from any quarter and hence has acquired prescriptive right of easement.

(3.) DURING pendency of the suit the original plaintiff died and in his place the present appellants were substituted, since the right to sue survives on them.