KADAM ALI BHUIYAN (MD) Vs. BEGUM SAHEDA NUR

JUDGEMENT

(1.) Descendants of original plaintiff Md. Kadam Ali Bhuiyan obtained the Rule upon making a revision application under section 115(1) of the Code of Civil Procedure against the judgment and decree dated 14-9-1998 passed by Additional District Judge, Court No. 1 at Dhaka in Title Appeal No. 347 of 1991, which reversed those dated 27-7-1991 of the 3rd Court of Assistant Judge at Dhaka and dismissed the suit.

(2.) On 26-6-89 the plaintiff instituted a suit. being Title Suit No. 119 of 1989 against the opposite parties for a decree of declaration of easement right over the pathway fully described with a sketch map in the schedule 'Kha' to the plaint and also for perpetual injunction for restraining defendant Nos. 2 to 5 from raising any wall and obstructing in any way the pathway. The suit was ultimately renumbered as aforesaid Title Suit No. 38 of 1991.

(3.) Plaint case, in short, is that the plaintiff purchased 4 decimals of land, which is fully described in schedule 'Ka' by a registered deed of sale dated 9-3-1963 with a pathway from the suit land and also for drainage. The pathway was about six feet wide and clearly demarcated with a sketch map marked by letter, [xxx xxx xxx] connecting the north and south road shown in schedule 'Kha'. The plaintiff used the pathway for more than 25 years and acquired an easement over the pathway. Defendant Nos. 2 and 3 are children of defendant No. 1 who constructed a building in 1987 touching the pathway with a cornice projecting up to three feet over the pathway.