PHANINDRA KR. MEDHI Vs. UMESH CH. BARMAN

JUDGEMENT

(1.) - The opposite party as plaintiff, filed Title Suit No. 56/2005 in the Court of the learned Civil Judge (Jr. Division), No. 3 (now Munsiff) at Guwahati, against the petitioner as defendant, praying for a decree for declaration that the suit land is the approach path of the plaintiff from VIP road to his plot of land, that he got the right to use the suit land as his approach path, that the obstructions/blockade put by the defendant on the suit land to prevent the plaintiff from using the same as his approach path, is illegal and liable to be removed, for a decree of mandatory injunction for removal of all obstruction/blockade in the suit land as well as for permanent injunction contending inter alia that the plaintiff and two others namely, Sri Naba Kr. Kalita and Sri Bhubaneswar Kalita, purchased total land measuring 1 Bigha 1 Katha 10 Lechas covered by Dag No. 341 of K.P. Patta No. 53 of village No. 1, Mathgharia, under Beltola Mouza, by a registered deed of sale dated 03.06.1988 from its owner, out of which 2 Kathas 10 Lechas of land belongs to the plaintiff and when the plaintiff purchased the said land, it was vacant and on the eastern side of the plaintiff's land there exist road namely, VIP road. It has further been contended that frontage land was also lying vacant and in the sale deed his vendor mentioned the frontage land, i.e. eastern side of his plot, as sarkari road, but in course of time, he came to know that in between the plaintiff and the VIP road there is 1 Katha land covered by Dag No. 342 of K.P. patta No. 7 of the same village and Mouza belonging to the defendant and as the said 1 Katha of land fell in front of the plaintiffs land he was compelled to use a portion of the said 1 Katha land for his ingress and egress as he has no alternative to reach the main road from his land, which is at a distance of 30 feet away. The plaintiff in the plaint has further contended that he started to use the southern portion of the said land measuring 8x30 feet (i.e. about Lecha) as described in the Schedule to the plaint, which he is using it since 1988 and though the defendant at one time agreed to transfer 730 Sq. feet of land on the eastern side of the plaintiffs land by way of exchange and an agreement was signed between the parties, the defendant, however, has started construction of RCC building over his land including the suit land on 19.12.2002 thereby putting obstruction over the existing entry path of the plaintiff, for which a proceeding under Sections 145/146 Crimial P.C. was initiated being Case No. 486M/02 and land was attached. The plaintiff in the plaint further alleged that the defendant violating the order of attachment proceeded with the construction though he has right to use the said approach path.

(2.) The petitioner/defendant, on receipt of the summon, entered appearance and filed written statement denying the existence of any such path as claimed by the plaintiff in the plaint and contended that he never relinquish or exchange any portion of the land with the plaintiff and also denying execution of any agreement with the plaintiff. It has further been contended in the written statement that the plaintiff having purchased the land much later than he purchased, there was no scope for him to use any land as approach path through the defendant's land, which was already surrounded by boundary brick wall. The further contention of the defendant in the written statement is that in the proceeding initiated under Sections 145/146 Crimial P.C. (Case No. 486M/02) by the learned Executive Magistrate, Guwahati a report from the Circle Officer, Dispur Revenue Circle was called for and accordingly, the Circle Officer, after issuing notice to both the parties, i.e. the plaintiff and the defendant, inspected the area and submitted his report stating clearly that no approach road exist through the defendant's land, for the use of the plaintiff as claimed by him, which report is available in the said proceeding. It has further been contended that the learned Executive Magistrate, thereafter, kept the proceeding being Case No. 486M/02 in abeyance after filing of the civil suit by the plaintiff.

(3.) The petitioner/defendant in the said suit being Title Suit No. 56/2005 and after closure of the examination of the plaintiff's witness filed an application under Order 13, Rule 10 read with Sec. 151 of the Code of Civil Procedure to call for the records of the proceeding initiated under Sections 145/146 Crimial P.C. being Case No. 486M/02 from the Court of the learned Executive Magistrate at Guwahati stating inter alia that the Circle Officer in terms of the order passed by the learned Executive Magistrate conducted the spot verification and submitted the report, which is necessary for the purpose of proper adjudication of the controversy between the parties in the suit. In the objection filed against the said petition, the plaintiff has stated that the evidence of the plaintiff having already been closed and the defendant being not entitled to take more than three adjournments to adduce evidence under the Code of Civil Procedure and he having took three adjournments and there being no explanation of delay in filing such application, the same deserves to be rejected. In the said written objection, it has further been contended that if the record of the said proceeding initiated under Sections 145/146 Crimial P.C. was necessary, the defendant ought to have taken steps to call for the same at the proper time and that the same is not necessary for the purpose of deciding the controversy between the parties.