Tripura High Court
Shri Sudarshan Sharma vs Shri Raja Paul on 12 April, 2021
Equivalent citations: AIR 2021 TRIPURA 19, AIRONLINE 2021 TRI 182
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
FAO 2 OF 2020
Shri Sudarshan Sharma,
S/o Late Shyam Sundar Sharma, resident of
Vill-Deocharra, P.O. & P.S. Panisagar,
District-North Tripura.
.. Appellant.
Versus
1. Shri Raja Paul,
S/o Late Bankim Paul,
2. Shri Bijoy Kumar Paul alias Bijoy Krishna Paul,
S/o Late Bankim Paul.
Both are residents of Vill & P.O. Rajbari,
P.S. Dharmanagar, District-North Tripura.
.. Respondents.
For Appellant(s) : Mr. S. Deb, Sr. Advocate.
Mr. S. Bhattacharjee, Advocate.
For Respondent(s) : Mr. K. N. Bhattacharjee, Sr. Advocate.
Mr. D. Debbarma, Advocate.
Date of hearing &
delivery of Judgment and order : 12.04.2021
Whether fit for reporting : No
HON'BLE MR JUSTICE ARINDAM LODH
Judgment & Order (Oral)
Heard Mr. S. Deb, learned Sr. counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the appellant. Also heard Mr. K.N. Bhattacharjee, learned Sr. counsel assisted by Mr. D. Debbarma, learned counsel, appearing for the respondents.
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2. This is an appeal filed under Order XLIII, Rule 1 of the Civil Procedure Code, 1908, challenging the order dated 17.03.2020 passed by the learned Civil Judge, Sr. Division, in case No.Civil Misc.(Vio) 26 of 2018 arising out of Civil Misc. 46 of 2017 in connection with Title Suit No.15 of 2016, titled as Shri Sudarshan Sharma, petitioner Vrs. Shri Raja Paul and Bijoy Kumar Paul, opposite party-respondents.
3. Briefly stated, the appellant here-in as plaintiff instituted a suit for declaration of his right to use the pathway described in Schedule-B of the plaint. Along with this declaratory suit the appellant also had filed an application under Order XXXIX, Rules 1 & 2 of CPC. The learned trial court after hearing the petition for injunction under Order XXXIX, Rules 1 and 2 passed an order granting temporary mandatory injunction meaning thereby the structure erected on the pathway obstructing free egress and ingress of the plaintiff over the suit pathway has to be removed or demolished. Being aggrieved of that order, the opposite parties had preferred appeal under Order XLIII, Rule 1(r) of CPC before the court of learned District Judge, North Tripura, Dharmanagar. Learned District Judge also confirmed the order passed by the learned trial court granting temporary mandatory injunction demolishing structures erected on the pathway obstructing free egress and ingress of the plaintiff.
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4. Against those orders, the respondent-opposite parties had preferred a revision application under Article 227 of the Constitution of India. It was registered as CRP 102/2016 titled as Sri Raja Paul & Another Vrs. Sri Sudarshan Sharma. A coordinate bench of this Court while disposing of that revision petition had observed thus:-
"15. This court has also carefully read the sale deed by which the plaintiff-respondent purchased the suit land. There is no mention of the said pathway except while describing the southern boundary it has been described as the egress and ingress path. This is not a transfer of the said path, but it recognizes the path. Whether that a description would create a right in favour of the plaintiff-respondent or not, is a matter of adjudication and at this stage this court would not make any observation inasmuch as that may affect the process of adjudication of the suit. Even no reliable prima facie material as to existence of the alternative path for ingress and egress from the suit land is available in the records of the trial court.
16. Having regard to all these aspects, this court does not find that the courts below have exercised the jurisdiction illegally or beyond their authority. However, this court is of the opinion that the temporary mandatory injunction as issued pending disposal of the suit is required to be modified. Without removing the brick wall or the gate that has been fixed, it is directed by this modified temporary mandatory injunction that the defendants shall keep the gate open for movement of the plaintiff or his men over the path as described on the southern boundary of the suit land. In terms thereof, this petition is disposed of."
5. Since the respondents did not act upon the order of this court to allow the plaintiff for his free egress and ingress over the suit pathway, the plaintiff filed an application under Order XXXIX, Rule 2A of CPC for violation of the order of this court. The respondents filed objection.
Page - 4 Evidences were recorded. During the proceeding, the learned trial court had passed an order appointing a survey commissioner to have an overview of the nature and character of obstruction faced by the petitioner- plaintiff. The Survey Commissioner issued notice upon the parties. Thereafter, on the schedule date and time Survey Commissioner made a thorough survey over the suit pathway and observed thus:-
"No.F.(25)/Survey Commissioner/SDM/DMN/2019-20/30 Dated 03/06/2019 To The Civil Judge (Senior Division) Dharmanagar, North Tripura.
Sub: Submission of the survey commissioning report of case no:
Civil Misc.(Vio).26 of 2018 in c/w T.S.15 of 2016.
Sudarshan Sharma,S/o Lt. Shyam Sundar Sharma of Deocharra, Dharmanagar, North Tripura, --plaintiff
--Vrs--
Sri Raja Paul and Other, S/o Lt. Bankim Paul of Rajbari, North Tripura- Defendant.
Respected Sir, In pursuance of your order I have conduct(sic) the commission on 17.05.2019 after maintain (sic) all codal formalities in presence of Plaintiff and Defendant. On my physical investigation it is clear that asking my three no point which results is mention below.
1. The obstruction i.e. welding over the entry and exit gate removed by the O.P. where is the enternce(sic) path of the plaintiff of his purchased land but not remove the erected brick wall from the said path.
2. The present position of the enternce(sic) path is that the last portion of said path has a brick wall which is a obstruction of enternce(sic) the plaintiff land.
3. There have no any alternative [path of entry to the land because sarounding(sic) area have large no of dwelling house and shope(sic).
Schedule (sic) of land details mention in notice copy which is enclose(sic) herewith.
Page - 5 This is for favour of your kind information and doing needful please.
Yours faithfully, Sd/-
(Sujit Datta) Survey Commissioner, O/o the SDM, Dharmanagar, North Tripura."
6. On plain reading of the aforesaid order which is revealed from Point No.2 that at the last portion of the said path there is brick wall which creates obstruction of free egress and ingress of the plaintiff through the said pathway. Thereafter, the parties adduced their respective evidences. After perusal of the evidences on record and on consideration of the survey report as stated here-in-above, the learned trial Judge came to the conclusion that there was no violation of free egress and ingress of the plaintiff through the said pathway vide order dated 17.03.2020. Feeling aggrieved of the said order i.e. 17.03.2020, passed by the learned trial court, the instant first appeal has been filed before this court.
7. Mr. Deb, learned Sr. counsel appearing for the appellant has submitted that the learned trial court has misconstrued the report of the Survey Commissioner as well as had failed to read the evidence in their proper perspective.
8. On the other hand, Mr. K.N. Bhattacharjee, learned Sr. counsel appearing for the respondents submitted that the learned trial court Page - 6 had detected some serious errors committed by the Survey Commissioner. Mr. Bhattacharjee, learned Sr. counsel has drawn my attention to a portion of the observation made by a co-ordinate bench of this court in CRP 102/2016 which is referred to supra at Para 15.
9. I have considered the rival submissions advanced by the learned counsels and taken into consideration Para 15 of the judgment passed by this court in CRP 102/2016. In Para 15, this court had observed that there was no mention of the said pathway except while describing the southern boundary, but it recognizes the path for free egress and ingress of the plaintiff on the southern boundary. However, the court has left over the matter to the learned trial court that this point would be decided after a full-fledged trial.
10. The co-ordinate bench of this court further observed that it came to the fore that except the suit pathway there was no alternative means for egress and ingress of the plaintiff-appellant to his land. After perusal of the direction and observations made in Para 16 of the Judgment passed in CRP 102/2016, I am of the opinion that the respondent- defendants herein have misused the good gesture shown by this court. The evidence led by the parties as well as the Survey Commissioner's report clearly reveal that there is obstruction in the free egress and ingress of the Page - 7 plaintiff-appellant through the suit pathway and this obstruction has been made by erecting a wall at the last portion of the suit pathway. I am convinced that this wall has been creating a serious obstruction to the free egress and ingress of the plaintiff-appellant over the suit pathway.
11. Accordingly, I have no other alternative but to direct the respondent-defendants to demolish the structure (brick wall) or any other structure which has been creating obstruction to free egress and ingress of the plaintiff through the suit pathway within a period of 4 (four) days from today, failing which, the learned court is directed to demolish all structures which creates obstruction to the free egress and ingress of the plaintiff- appellant, over the suit pathway at the cost of respondent-defendants.
The observations made in this order will not affect the trial of the main suit.
Send a copy of this order to the learned trial court. Copy of this order also be supplied to the learned counsels of the parties in course of the day.
JUDGE