MD. ERSHAD ALI Vs. HAJEE ASHID ALI

JUDGEMENT

(1.) This appeal by leave by the defendant-appellant is from the judgment and order dated 17-2-93 passed by a learned Single Judge of the High Court Division in Civil Revision No. 2114 of 1990, discharging the Rule.

(2.) The respondents as plaintiffs filed Title Suit No. 193 of 1987 in the Court of Assistant Judge, Sadar, Sylhet for declaration of an easement right over the suit pathway, confirmation of possession and also for permanent injunction restraining the defendant-appellant and others from interfering with their possession of the pathway and from changing the nature and character of the same in any manner by putting any obstruction e.g., a gate at the entrance of the pathway. They claimed the suit pathway to be in existence for over a century over which the owners of adjacent lands had been enjoying the easement right uninterruptedly, continuously and peacefully, the suit pathway is the plaintiffs only way for the ingress and egress of their house leading to Sylhet Municipal Road which runs to the south of it. As the defendants started constructing a gate-way at the entrance of the suit pathway the plaintiffs, along with the filing of the suit, filed an application for temporary injunction and the trial Court by order dated 31-10-87 directed the parties to maintain status quo. On 3-12-87, the trial Court allowed the plaintiffs' prayer for amendment of the plaint after paragraph 4 of the plaint in the following terms, as prayed for:-

(3.) The trial Court however dismissed the application for temporary injunction by order dated 29-3-88 whereupon the plaintiffs preferred Miscellaneous Appeal No. 38 of 1988 in the Court of District Judge, Sylhet which is pending in the 2nd Court of Subordinate Judge, Sylhet. On 7-6-90 the plaintiff-respondents filed an application before the 2nd Court of Subordinate Judge, Sylhet for permission to bring gas line and water line by putting pipes under the suit pathway and by order dated 20-9-90 the learned Subordinate Judge, Sylhet gave permission to the plaintiff-respondents to bring gas connection under the suit pathway on condition that they will repair at their own costs the damages caused to the pathway for taking the gas line.