HELAL UDDIN Vs. JOYTUN NESSA

JUDGEMENT

(1.) The core question arising in the present case is as to whether the learned First Appellate Court was justified in law in passing the impugned judgment and order dated 02-08-2003 in Title Appeal No. 37/2000 setting aside judgment and decree dated 28-06-2000 passed by Civil Judge (Dr. Div.) No. 1, Karimganj in Title Suit No. 102/1991 and remanding the matter for retrial by the court of first instance.

(2.) The plaintiffs case in brief is that they are the owners of the suit land by way of right of inheritance. The suit land is their homestead land and is recorded in the name of the plaintiffs during last settlement survey. In their illegal bid to carve out a pathway in southern and eastern boundary of the homestead pond belonging to the plaintiffs, the defendants herein had instituted a proceeding under Section 133 Cr.P.C. by Misc. Case No. 103/1991. The said misc. case was dismissed by the learned Magistrate in view of the fact that the dispute sought to be raised therein was civil in nature. As such the plaintiffs were compelled to institute Title Suit No. 102/1991 in the court of learned Civil Judge (Jr. Div.) No. 1, Karimganj, inter alia, praying for a decree declaring their right, title and interest over the suit land and also for confirmation of possession in respect thereof besides other consequential reliefs.

(3.) The defendants contested the suit by filing written statement thereby denying the case of the plaintiffs. Over and above taking a general objection pertaining to the maintainability of the suit, the defendants had also taken a plea that Darbesh Saheb Maszid was constructed by the predecessor of the defendants i.e. Darbesh Saheb Abdul Gani. It is their case that a pathway has been in existence starting from south and proceeds towards north through the southern and eastern bank of pond of the plaintiffs which also, after touching upon the aforesaid mosque, reached PWD road at Lakshmi Bazar Road on the north. The defendants have claimed that the said path has been used by the villagers since time immemorial so as to communicate to the Tila Bazar, Darbesh Saheb Mosque and shrine. Since there is no other path to go to the mosque and Tila Bazar except suit path. It is further stated that the defendants along with some of the plaintiffs had purchased some land in order to widen the said path in the year 1975. The contesting defendants claimed to have acquired right of easement of necessity in respect of the suit path. They have admitted that prior to institution of the suit the defendants had instituted a proceeding under Section 133 Cr.P.C. for declaration of the suit path.