DHARMESWAR ROY Vs. PUTUL CHANDRA DAS

JUDGEMENT

(1.) The appellant /defendant being aggrieved by the impugned judgment and decree dated 25.11.1999 passed by the Civil Judge (Senior Division), Goalpara allowing the Title Appeal No. 14/99 (New) against the judgment and decree dated 18.8.1998 passed by the learned Civil Judge (Junior Division) No. 1. Goalpara dismissing the T.S. No. 63/95 filed by the respondent/ plaintiff preferred this second appeal.

(2.) The respondent/ plaintiff filed the T.S. No. 63/95 for a declaration that the respondent/ plaintiff has casementary right on the suit path described in Schedule-A of the plaint and sketch map attached to the plaint against the appellant/defendant. The respondent/plaintiff had pleaded in the plaint of T.S. No. 63/95 that the suit path/suit land described in Schedule-A to the plaint is in possession and used by the respondent/plaintiff as a path from his house for ingress and egress from his land described in Schedule 'B' to the plaint to the public road from time immemorial. The father of the respondent/ plaintiff also had used the suit path/the suit land for egress and ingress from the land described in Schedule-B till his death in the year 1970. The suit path/the suit land which lies adjacent to the eastern side of the respondent/ plaintiffs land is a vacant plot measuring 1-K- 16-L and it has been recorded as khas land in the revenue record since time immemorial. The suit path is 90 ft. in length and 8 ft. in breath. The respondent/plaintiff also specifically pleaded in the plaint that the respondent/plaintiff has no alternative then the suit path/the suit land for using ingress and egress from his land described in Schedule 'B' to the plaint to the public road. The exact position of the suit path is indicated in the sketch map attached to the suit land.

(3.) In the last settlement operation it is stated that the appellant/defendant had got katcha patta for the suit path/ suit land from the revenue authority recorded in his name and wrongfully rise a brick wall foundation for obstructing the use of the suit path/suit land by the rerespondent/plaintiff for ingress and egress from his land to the public path. On 17.9.1995 while the respondent/plaintiff was clearing the grass and shrubs naturally growing on the suit path/suit land, the appellant/defendant threatened to obstruct the using of the suit land/suit path. The respondent/plaintiff stated that cause of action arose on 17.5.1995. Accordingly the respondent/ plaintiff filed T.S. 63/95 for the declaration that the respondent/ plaintiff has easementary right on the suit path/suit land for ingress and egress to public road and also for a mandatory injunction directing the appellant /defendant not to raise any obstruction on the suit path/suit land and also for a decree for perpetual injunction restraining the appellant/defendant from any act of future obstruction.