SHAMSUL HUQ MOLLA Vs. SHUNIL CHANDRA BISWAS

JUDGEMENT

(1.) This Civil Appeal, by leave, is directed against the judgment and order dated 20.05.2001 passed by a Single Bench of the High Court Division in Civil Revision No. 1563 of 1998 making the Rule absolute.

(2.) The facts of the case, in brief, are that the appellant as plaintiff filed Title Suit No. 56 of 1994 for declaration of his easement right over the suit property stating, inter alia, that he acquired .17 acre of land, which has now been recorded as R.S. Dag No. 1267 by kabala dated 26.09.69 and after constructing his dwelling house he had been living therein. In order to use and access the pucca road of Battala, Gopalgonj Town, he as well as his predecessor used the pathway on foot which went through the southern side of plot No. 1251 of the defendants which stands on the eastern side of the plot of the plaintiff and then using the Government Halat (i.e. access pathway) situated on plot Nos. 1263, 1256 and 1257. The said pathway was in existence for more than 50 years. The said pathway over the southern side of plot No. 1251 is about 3 to 4 cubits wide and the plaintiff further stated that this pathway has been the only convenient access on foot to the pucca Battala Road from his plot. The defendants with ulterior intention of grabbing the Halot on the plots No. 1263, 1256 and 1257, started raising wall on decimal of land on plot No. 1251 which was situated on the entrance to the aforementioned pathway. Despite repeated objections from the plaintiff, the defendants continued with the construction. Thereafter, the plaintiff applied to the local Chairman on 16.6.1993 and 24.7.1993 to settle the matter, but the Chairman failed to ensure the attendance of the defendants and as such no settlement was reached. Finally, the plaintiff requested the defendants on 20.9.1993 to stop the ongoing construction of the wall on the entrance to the pathway, which they refused, and threatened dire consequences if the plaintiff and his family members did not stop using the pathway. As a result, the access to and from the plaintiffs plot No. 1267 was blocked from all sides and the dwelling of the plaintiff became uninhabitable. Being aggrieved by the ongoing construction of wall by the defendants, the plaintiff filed Title Suit No. 56 of 1994 seeking declaration of right of way over the disputed plot No. 1251 belonging to the defendants. During trial, the plaintiff moved an application for amendment of the plaint and stated that despite an injunction, the defendants were still continuing with the construction of the wall and had constructed a latrine and prayed to the Court for a direction upon the defendants to demolish the wall, otherwise the plaintiffs property would be landlocked and for this reason the plaintiff has filed this suit.

(3.) The defendants-respondents contested the suit by filing joint written statement contending, inter alia, that plot No. 1268 is situated on the western side of the plaintiffs plot No. 1267 and the road to Pourashava is situated on the western side of the said plot No. 1268 and if the plaintiff got possession of some land to the north of Plot No. 1268 amicably from the co-sharers, he would have access to the town. The defendants further stated that the plot No. 1251 situated to the east of the plot No. 1267 comprises an area of .06 acre of land and the defendants have been living therein by constructing dwelling hut since the time of their predecessor, and the dispute arose between the plaintiff and the defendants regarding boundary of plots No. 1267 and 1251 and then after necessary survey, the defendants raised wall between the said plots long ago and there was no vacant land in the southern side of plot No. 1251 and there was also no mention of Halot in the C.S. Khatian in respect of .01 acre of land against each of the plot Nos. 1256, 1257 and 1263 and those plots were never used as public Halot. The defendants further stated that an area of 3 cubits width is lying vacant from east to west on the southern part of plot No. 1268, which connected the Pourashava Road, situated at plot No. 1270, and the plaintiff had been using the said vacant land as passage till the filing of the suit.