Calcutta High Court (Appellete Side)
Kamala Debi & Ors vs Madan Mohan Nandi on 6 August, 2024
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
S.A.101 of 2002
With
CAN 12 of 2023, CAN 13 of 2023
Kamala Debi & Ors.
Vs
Madan Mohan Nandi
For the Appellants : Mr. Nirmalya Dasgupta
Mr. Dibananth Dey
Mr. Ramesh Chandra Paul
Ms. Pallavi Pain
For the Respondent nos.1(a), : Mrs. Sohini Chakraborty
1(b), 1(d), 3(b), 3(c), 4(11), Mr. Pradyut Kumar Nandi
5(b) and 5(c) Ms. Subhra De
Heard on : 09.05.2024
Judgment on : 06.08.2024
Ajoy Kumar Mukherjee, J.
1. This second appeal has been preferred against judgment and decree passed by learned Additional District Judge 3rd Court Barasat in Title Appeal. No. 88 of 1994 dated 11th June, 1997, arising out of judgment and decree passed by Additional Munsif at Sealdah in Title Suit. No. 210 of 1982 on 26th May, 1994. By the impugned judgment the court below has set aside 1 the order of dismissal passed by the Trial Court and granted relief in favour of the plaintiff/respondents herein.
2. The subject matter of the plaint case is a strip of land wherein defendant/appellants herein claimed ownership being a part and portion of 28 & 29 Ramchandra Bagchi Lane, Kolkata. The plaintiff filed the suit for delclaration that the said strip of land is their only common passage for ingress and egress from their respective houses and the defendants have no right to obstruct or construct on the said passage and as such plaintiffs also prayed for permanent injunction along with declaration of their right to user of the said passage. Plaintiffs further case is that they are using the said passage for about 100 years and if the same is blocked they will be landlocked.
3. Appellants herein as defendants appeared in the said suit and filed written statement. The specific case of the defendant in the written statement is that they have not interferred with the suit passaage and had infact contributed some land to make the said passage 3 ft. Wide and in para 2 of the written statement they have also claimed that they are the co- sharer of the said passage in question and have the same right to use it along with the plaintiffs.
4. During trial the defendants tried to agitate that the plaintiffs have their alternative passage for their ingress and egress in the western side of their land and as such even if the said passage is blocked by the defendants, plaintiffs by no means will be landlocked. Learned Trial Court after hearing the parties came to a finding that the plaintiffs failed to establish that they are using suit passage and plaintiffs only relied upon the defendant's 2 purchase deed dated 12th August, 1970 but the defendants have their specific case that the said strip of land, namely suit passage is exclusively owned by them and it is their private passage. The Trial court also held that the plaintiffs have not challenged the local investigation commission report which states that the said strip of land apertains to dag no. 769 and 769/912. Accordingly court below did not beleive that the suit passage is a common passage and held that the said passage is owned by the defendants but he observed that the plaintiffs may have use the said passage on ocassion. Trial Court based his judgment on the finding that the plantiffs have alternative passage on the western side of defendant's premises and as such plantiffs claim that the suit passage is their only passage for ingress and egress, has got no substance and thereby Trial Court dismissed plaintiff's suit.
5. Being aggrived by the said order the plaintiffs preferred appeal before the 1st Appellate court. Learned 1st Appellate court after hearing both the parties came to a finding that no clear picture is coming to show that the appellants/plaintiffs have any alternative passage for ingress and egress to their house from the suit property, though the case of plantiff no. 2 is otherwise since he has an opening to the Ramchandra Baghci Lane having frontage of his house towards the said lane but in the case of other plaintiffs it has not been clearly established that they have alternative passage for ingress and eagress. The court below further held that neither party has brought independent witness in support of their claim about user of suit passage but fact remains that plaintiffs/appellants came into the premises no. 30 Ram Chandra Bagchi Lane sufficiently ahead of the 3 respondents/defendants and their house lies on the soutern side of the house of the defendants. The court below further observed that the documents of titile reveals the passage as common passage and untill and unless it is proved that the plaintiffs/appellant have alternative way out, it can be said that in the event the suit passage is blocked, they will be landlocked. Court below further held that from the facts and cirucmstances of the case and the material placed before the court, it is found that appellants/plaintiffs are using the suit passage for more than 20 years from the date of filing of the suit, as plaintiff's deed dates back 1892 in respect of the premises they occupy.Accordingly court below came to a finding that the plaintiffs/appellants have acquired easement right against the survient owner of the said passage and as such they are entitled to get decree of permanent injunction, restraining the respondent/defendants from blocking the suit passage or making any construction upon the same.
6. Being aggrived by the said judgment of the first appellate court, Mr. Das Gupta learned Counsel appearing on behalf of the Appellant submits that plaintiffs have averred in their plaint that they have right to use the suit passage for ingress and egreess but plantiff no. 7 as PW-1 had deposed before the court that their vendors had sold the suit passage to the predecessor of plaintiffs which is contrary to the case made out by the plaintiff in the plaint. In this context relying upon the judgment of Union of India Vs. Ibrahim uddin and another reported in (2012) 8 SCC 148, he contended that no party can be allowed to lead evidence in absence of pleadings and in the present case evidence and pleading are contradictory to each other and as such cannot be considered. Moreover, plaintiffs could not 4 produce any document to show their right title interest over the suit passage though PW-2 stated that they have documents to show that the suit passage are being used by the plainitffs. He further contended that the failure on the part of the plaintiffs with regard to the title of the suit passage, the presumption under section 114 of the Evidence Act has to be drawn against the plaintiffs.
7. Mr. Das Gupta in this context further contended that the settled principle of law is that one who asserts has to prove the issue and accordingly as the plaintiffs in the plaint has taken a specific plea that they are using the said strip of land for several years and they are the owners of said land, the burden is upon the plaintiffs to prove the same but in the present context plaintiffs have miserably failed to prove the same. In this context he relied upon Smriti Deb Barman (deed) Vs. Probha Ranjan Debbarman & others reported in 2023 SCC Online SC 9 and Anil Rishi Vs. Gurbaksh Singh reported in (2006) 5 SCC 558.
8. Mr. Das Gupta in this context further contended that weakness of the defendants cannot be a justified ground for passing any order or decree. Learned court below relying upon defendant's deed marked exhibit "A" where the said strip of land has been shown as common passage in the sketch map, has passed the decree. He therefore contended that it is settled law that the plaintiffs cannot rely on the defence or weakness of the defendants for proving his case. Unfortuantely in the present case the judgment impugned was passed relying upon the deed of conveyance of defendant, inspite of the fact that plaintiffs could not support their contention either with regard to the usage of land or with regard to the title. 5 In this context he also relied upon (2014) 2 SCC 269 Union Of India & Others Vs. Vasavi Co-operative Housing Society Ltd. & Others and (1976) 1 SCC 20 Vagirath Vs. State of M.P.
9. Mr. Das Gupta in this context further contended that the court below decided and declared that the plaintiffs have acquired easment right over the suit passage while he failed to appreciate that the Easement Act 1882 is not applicable in the state of West Bengal. He further contended that in the present context the PWs claimed ownership over the suit passage and accordingly they cannot acquire easement right over their own land. He further contended that the investigation commissioner has submitted report which shows that the said passage is part of defendant's purchased land and said report had never been challenged by the plaintiffs/respondents herein and as such in view of order XXVI rule 10(2) of C.P.C., the report shall form part of the record and therefore, the contents of report cannot be overlooked or rejected merely on the ground that the commissioner was not examined as a witness. In this context relying upon (1995) supp (4) SCC 600, Misrilal Ramratan and others Vs. A.S Shaik Fathimal (Dead) and others, he further contended that since plaintiffs have claimd ownership over the property, they have not made any prayer claiming adverse possession in the suit passage. This is also because plaintiffs no where mentioned about their initial entry with a right to possess the property and the right of adverse possession is to be claimed in respect of land owned by others.
10. Accordingly Mr. Das Gupta submits that though the court below had granted releif by moulding it, but such court has no jurisdiction to mould 6 the releif and for which the order impugned is wholly perverse in nature. Moreover, the court below held that plaintiff no.2 does not have the same cause of action against the defendants who are the appellants herein for filing the suit. In such event the filing and/or the institution of the suit is faulty. Moreover, plantiff no. 2 has no cause of action against the defendants and under such circumstances the assertion of plaintiff in the plaint and the evidence adduced by PWs are contrary to each other. Therefore, joining plaintiff no.2 in the suit makes the suit barred under the provision of order I rule 1 of C.P.C. He further contended that the plaintiffs have alternative passage for entering their respective property and the plaintiffs at all material point of time used the western side common passage as shown in the plan attached in exhibit "A". The suit passage of the eastern side is used exclusively from the premises no. 28 Ramchandra Bagchi Lane and before the suit was filed the plaintiffs never alleged to have any right over the eastern side passage. Accordingly plaintiffs do not have any cause of action to institute the suit and for which the Trial court was justified in dismissing the suit. Unfortunately, the learned court below failed to appreciate the case in its proper perspective and he made out a third Case of acquiring easment right by the plaintiffs which is beyond the pleading and for which impugned judgment passed by the court below is liable to be set aside.
11. Mrs. Chakraborty learned cousnel appearing on behalf of the plaintiffs/respondents argued that plaintiffs have proved two deeds in their favour. By the first deed dated 7.10.1893, one Annapurna sold soutern portion of the proeprty to predecessor of the respondents which clearly described the path used by Annapurna for ingress and egress in the 7 property of predecessor in interest to the respondents and she retained the rest. By the second deed dated 16th August, 1897 the said Annapurna sold the rest portion of the property retained by her in the earlier deed and from the deeds it is apparent that 30 inch pathway to the north of the property was owned by Annapurna for ingress and egress to the properties sold by such deeds which is the suit passage. However the deed also mentioend about another 30 inch pathway on the western side but it is not mentioned whether such pathway was used by Annapurna or whether such passage was accessible to the prdecessor in interest of the respondents. Accordingly defendant/appellant's contention that the plaintiff/respondents have alternative passage for their ingress and egress or that if the eastern side suit passage is blocked plaintiff will not be landlocked, does not have any substance. Accordingly he has prayed for dismissal of the appeal.
12. A Division bench of this court while admitted the Second Appeal on 3rd February, 2003 formulated the following substantial question of law:-
(i) Whether the learned court of Appeal below should have held that the plaintiffs/respondents have failed to prove their case that the suit passage was the only passage for ingress and egress of the said plaintiffs/respondents to the main road since neither any document nor any independent witness was produced to prove the same;
(ii) Whether the learned court of appeal below failed to appreciate that the plaintiffs used the common passage on the western side of the defendant's premises being premises no.28, Ram Chandra Bagchi Lane, therefore, the alternative passage on the westernside cannot be ignored in the facts and circumstances of the case;
(iii) Whether the suit passage appertains to Dag no. 769 and 769/912 which were purchased by the defendants together with the structure thereon by the Ext.A as it is evident from the report submitted by the Investigating Commissioner and was accepted without any objection, the learned court of Appeal below was wrong in treating the said suit passage as common passage:
(iv) Whether the learned court of Appeal below cannot make out a third case that the plaintiffs have acquired an easement right when there is no whisper either in the plaint or in the grounds of appeal and in the context of 8 such undisputed fact, the plea of right of easement stood completely negativated and/or annulled:"
Decision
13. It has been strenuously argued by the appellant/defendants that the plaintiffs are not entitled to get decree since their pleading and evidence are contradictory to each other but from the evidence it appears that the plaintiff's witnesses stated in their evidence that the suit passage is their only passage for ingress and egress. It has been mentioned above that defendants/appellants in their written statement have also accepted that the plaintiffs are co-sharer of the suit passage with the defendants, if that be so then the evidence of defence witness is also contrary to the defendants pleading to the extent that the suit passage is exclusively owned and possessed by them.
14. As stated above from the plaintiffs deed it appears that the vendor of the plaintiffs namely Annapurna mentioned said suit passage for her ingress and egress to the properties, which property she thereafter sold to predecessor in interest of the respondents. So from both the deeds filed by the plaintiffs and the defendants, it is apparent that both of them use the suit passage for their ingress and egress as both the deeds describe the suit passage as common passage.
15. In this context it is also required to be considered as to whether the plaintiffs will be landlocked if the eastern side suit passage is allowed to be blocked. From the evidence it is clear that other private passage does not belong to the Respondent and even DW1 admitted that they have a back space of 4 ft. in his southern side but the plaintiffs do not have any space on 9 his northern side and this back space runs through premises no. 28 and 29 and it meets the passage used by Tarapada Pramanick on the western side. DW-1 also stated that the said passage belong to Tarapada and other persons who reside by the side of the passage. Mrs. Chakraborty in this context pointed out that the defence witness clearly pin pointed that the plaintiff do not have access to this western side passage. In fact defendants have 4ft. wide passage in their back side which connects to the western passage. Plaintiffs witness also stated that Tarapada has his passage over the land which leads to Ram Chandra Bagchi Lane and the plaintiff no. 1 does not use such passage. The plaintiff no. 1 also deposed as PW2 who stated that his sons purchased premises no. 27/A 27/2, R.C. Bagchi Lane. He further stated that they have no right over the passage of premises no. 27A and 27/2 nor they have any alternative passage.
16. Mrs. Chakraboroty in this context pointed out that when defendant/appellant admitted in their written statement that plaintiffs use the suit passage for ingress and egress, such admission is the best piece of evidence and they are estopped from claiming that they use the eastern passage exclusively.
17. Now section 25 of the Limitation Act provides acquisition of easement by prescription and it states that where the access to and from any building have been peaceably enjoyed therewith as an easement and as of right without interruption for 20 years, the right of such access shall be absolute and indefeasible. In the present case the predecessor in interest of the plaintiff purchased their property in 1894 and 1897 and the deeds states that suit passage was purchased by the vendor of their plaintiff for ingress 10 and egress to such properties. The defendants also not disputed that the plaintiffs are living in their purchased properties before the defendants.
18. This High Court during the course of hearing of the appeal by its order dated 13.09.2023 was pleased to appoint one Advocate of this court as special officer for submitting a report as to whether the respondents herein will be landlock in case the appellants create blockage on the passage which the appellants are claiming to be their private passage and he was further directed to report as to whether respondents have any other alternative passage to have access to their respective houses from Ram Chandra Bagchi Lane Kolkata except suit passage.
19. Learned special officer has submitted his report and the report states:-
"That at the time of inspection I have found that there are two passages one on the eastern side of the premises no. 28 and 29, Ram Chandra Bagchi Lane and another on the Western side ot the said premises. Both the said passages start from the municipal road and connect premises no.s 28 and 29 and 30, 30/1 and 30/2, Ram Chandra Bagchi Lane which opens on the western side passage and the respondents may access their residential property through the western passage.
That however there will be obstacle and /or obstruction before the respondents in accessing the premises no.30,30/1 and 30/2, Ram Chandra Bagchi Lane through eh western side passage., This is because on the western side of the western side passage there are other residential buildings owned by third parties being premises no. 27,27/1,27/A and 27/1A, Ram Chandra Bagchi Lane. The owners of the aforesaid premises use the said western side passage for egress and ingress from their respective premises to the municipal road. As such on further inspection it appears that the owners of the aforesaid premises have installed iron gates infront of their respective premises to demarcate their portion and for security reasons and it appears that all those iron gates open and close on the western side passage. It can be well presumed that the owners of the said premises will open or close the said iron gates as per their own conveniences and not for the conveniences of the respondents. This will cause difficulty for the respondents to access their premises through the western side passage.11
That the only conclusion which can be drawn from the inspection work is that there are two passages through which the respondents. Can access their residential premises however practically the passage on the eastern side. i.e. the suit property is the only convenient way for the respondents for egress and ingres to their residential property from the municipal road."
20. In the present context I do not find any perversity in the finding of the court below that the PWs became overenthusiastic in claiming title over the suit passage but actually plaintiffs have in substance only claimed right to use that passage, as that is their only common pathway for egress and ingress and exhibit 1 and Exhibit 1 A are the title deeds of the plaintiff wherein the existence of said passage has been referred and exhibit A is the deed of defendant which also corroborate the same. His further observation that it cannot be taken as granted that the mentioning of the word 'common passage' in the deeds are mere mistake or the word 'private' had mistakenly put before the words common passage.
21. Though defendants/appellants has placed much reliance upon the unchallenged investigation commissioners report but even if reliance has been placed upon the said report which tells about defendants ownership in the land, in that case also plaintiffs prescriptive right gets fortified over the land of another.
22. In this context I also find that in order to do complete justice, the court below had committed no mistake in observing that due to user of said passage for more than 20 years plaintiffs have acquired a prescriptive right over the said land under section 25 of the Limitation Act, and thereby he has rightly moulded the relief which the plaintiff are entitle to get. Such 12 right of the court below has been clearly recognised under order VII rule 7 of the Code of Civil Procedure.
23. Above all it is settled proposition of law that High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusion drawn by the court below are erroneous due to contrary to law or has been based on inadmissible evidence. This is also because in view of Apex Court observation in AIR 2006 SC 1975, (Gurudev Kaur & others Vs. Kaki & others) that the legislative intention never wanted second appeal to become third trial on facts or one more dice in the gamble. Since the observation made by the court below is based on proper appreciation of evidence on record and since the observation of the Trial Court is cryptic and not based on appreciation of evidence, the High Court should not interfere with such findings based on proper appreciation of evidence. In fact trial court ignored material evidence on record and had drawn wrong inferences from proved facts by applying the law erroneously.
24. In such view of the matter I find nothing to interfere with the ultimate finding of the court below and as such the second appeal is liable to be dismissed.
25. In such view of the matter S.A. 101 of 2002 is dismissed.
26. The judgment and order passed by Additional District Judge, 3rd Court Barasat in Title Appeal No. 88 of 1994 dated 11th June 1997 is hereby affirmed. Connected Applications are also disposed of accordingly. 13 Urgent photostat certified copy of this order, if applied for, be supplied to the parties, on priority basis on compliance of all usual formalities.
(AJOY KUMAR MUKHERJEE, J.) Later:
After delivery of judgment, learned counsel for the appellant prays for stay of operation of the judgment and order.
Prayer is considered and rejected for want of any cogent ground.
(AJOY KUMAR MUKHERJEE, J.) 14