PADMA NATH GAYAN Vs. CHANDRADHAR DUTTA

JUDGEMENT

(1.) This Second Appeal has been preferred by the defendants challenging the concurrent findings of two courts below. The learned trial court decreed the suit of the plaintiffs for negative declaration that the defendants did not acquire right, title and interest or right of easement and user over the suit path and also for further declaration that the plaintiffs have right, title and interest over the suit land and for recovery of khas possession. Apart from these two prayers, a further prayer was also made for recovery of compensation and mesne profit.

(2.) The plaintiffs instituted the suit in the court of learned Assistant District Judge at Jorhat on 12.11.1986 stating that the defendants had instituted a proceeding in the court of learned Executive Magistrate at Jorhat against the plaintiffs asserting their right of user over the suit path since 1960 by way of repairing and maintaining the road and also for restraining the plaintiffs from damaging or blocking the same. Misc. Case No.380/1986 under Section 133 Cr.P.C. was registered by the learned Executive Magistrate and process was issued to the plaintiffs and because of such pendency of the proceedings the plaintiffs claimed to have been compelled to institute the suit for aforesaid negative as well as positive declaration and injunction. The plaintiffs asserted that their predecessor, Moloka Dutta, did never make any gift in favour of the public as had been claimed by the defendants in their proceeding before the Executive Magistrate and so there was no such path at all at the relevant point of time to be gifted by Moloka Dutta at all. In fact, there were only two families ­ one of them was of one Bhalla and another of one Fili residing in the area at that time and after whose death their legal heirs started living in the same locality, who are none other than the defendant Nos.1, 6, 7, 8 and 9. Similarly, defendant Nos.5, 10, 11 and 12 also live in the same vicinity. The defendant Nos.2 and 4 live on land of Dag No.577. The predecessor of the defendants i.e. Bhala and Fili used the 'Bongias' for their ingress and egress and being their legal heirs the defendants subsequently continued using the same. But they gradually encroached and occupied substantial portion by widening and extending the 'Bongias' through the suit land and other adjoining land without there being any consent or authority from the side of the plaintiffs. Even the defendants were still in the spree of widening the road further. In paragraph 10 of the plaint, it was further disclosed that the alleged path was under occupation of the defendants which is described in Schedule -A to the plaint and their predecessors -in -interest and after them the defendants continued encroaching upon and gradually occupying the same by widening/extending the 'bongias' on and from the date of user of the path without any authority. But while admitting that the 'bongia' was being used by the defendants or their predecessors the plaintiffs did not make mention of any date as to when such user had started. Title Suit No.99/1986 of the court of learned Assistant District Judge, Jorhat was registered thereby and summons were issued to the defendants.

(3.) The defendants appeared and submitted written statement and staked claim in paragraphs 8 to 12 of the written statement that they have been using the path since 1961. According to them, the land had been orally gifted by the plaintiffs' predecessor to the people of the locality for user as a path who, in turn, handed it over to the panchayat and the panchayat has been maintaining it by receiving grants from the government. Thus, the defendants claimed that they had been using the suit path for a period of over 26 years. They prayed that the suit be dismissed with cost.