RAM NARAIN PRASAD GUPTA Vs. SATYABATI DEVI

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgment and decree passed by Shri Awadhesh Kishore Prasad Singh, 2nd Additional District Judge, Sitamarhi in Title Appeal No. 10 of 1981/21 of 1983, filed by respondents which was decreed against the defendant 1st set who are the appellants before this Court. On appeal being preferred by the defendant 1st, this was also dismissed by the 1st appellate Court, as stated above. Hence, this second appeal.

(2.) IN substance, the case of the plaintiff -respondents was for declaration that they had right of usar over survey Plot No. 511 as passage. The case of the defendant -appellant was that Plot No. 511 was under their title on purchase but however, this was recorded in revisional survey in the name of State of Bihar. Subsequently, this entry was challenged in the consolidation operation and this error was corrected. The right of easement claimed by the plaintiff -respondent was denied. The trial Court as also the appellate Court, failed to consider certain documents filed by the appellant and on the ground of this non -consideration, the judgments of both the lower Courts vitiated. In this appeal, substantial questions of law formulated for consideration in this appeal are as under:

(3.) DURING the course of argument, it was pointed out by the appellants lawyer that the trial Court has catalogued the documents filed by the appellant at paragraph 7. However, these documents filed by the appellant were not, at all, considered by the trial Court, the appellate Court also failed to consider the documents, except Ext -J/5and Ext -K. On perusal of judgments of the trial Court, I find that of course, it referred to a bunch of documents filed and exhibited on behalf of appellants; but there is no finding of the trial Court on these documents and that these documents did not substantiate the case of the defendant -appellant regarding non -existence of easementary right of the plaintiff -respondent over Plot No. 511, The trial Court rather went by the oral evidence of plaintiff and defendant (appellant) and on the basis of certain admissions on the part of plaintiffs witnesses, it came to the conclusion that there was easementary right of the plaintiff -respondents on Plot No. 511. The appellate Court also considered Ext -J/5 and Ext -K filed on behalf of defendant -appellant, but it has neither referred to other documents filed by the appellant nor these documents were considered in order to give a finding whether there was existence of passage over Plot No. 511 used by the plaintiff -respondents.