Gauhati High Court
Padma Nath Gayan And Ors vs Naren Gayan And Ors on 31 March, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
RSA No. 182 of 2003
Sri Padma Nath Gayan & others
... ... Appellants/Defendants
-Versus-
Sri Chandradhar Dutta & others.
... ... Respondents/Plaintiffs
BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the appellants : Mr. S. Ali, Advocate.
For the respondents : Mr. N. C. Das, Sr. Advocate.
Ms. K. Das, Advocate.
Date of hearing : 31.03.2016.
Date of Judgment : 31.03.2016.
JUDGMENT & ORDER (Oral)
1. This Second Appeal has been preferred by the defendants challenging the concurrent findings of two courts below. The learned trial court decreed the suit of the plaintiffs for negative Page 1 of 12 declaration that the defendants did not acquire right, title and interest or right of easement and user over the suit path and also for further declaration that the plaintiffs have right, title and interest over the suit land and for recovery of khas possession. Apart from these two prayers, a further prayer was also made for recovery of compensation and mesne profit.
2. The plaintiffs instituted the suit in the court of learned Assistant District Judge at Jorhat on 12.11.1986 stating that the defendants had instituted a proceeding in the court of learned Executive Magistrate at Jorhat against the plaintiffs asserting their right of user over the suit path since 1960 by way of repairing and maintaining the road and also for restraining the plaintiffs from damaging or blocking the same. Misc. Case No.380/1986 under Section 133 Cr.P.C. was registered by the learned Executive Magistrate and process was issued to the plaintiffs and because of such pendency of the proceedings the plaintiffs claimed to have been compelled to institute the suit for aforesaid negative as well as positive declaration and injunction. The plaintiffs asserted that their predecessor, Moloka Dutta, did never make any gift in favour of the public as had been claimed by the defendants in their proceeding before the Executive Magistrate and so there was no such path at all at the relevant point of time to be gifted by Moloka Dutta at all. In fact, there were only two families - one of them was of one Bhalla Page 2 of 12 and another of one Fili residing in the area at that time and after whose death their legal heirs started living in the same locality, who are none other than the defendant Nos.1, 6, 7, 8 and 9. Similarly, defendant Nos.5, 10, 11 and 12 also live in the same vicinity. The defendant Nos.2 and 4 live on land of Dag No.577. The predecessor of the defendants i.e. Bhala and Fili used the 'Bongias' for their ingress and egress and being their legal heirs the defendants subsequently continued using the same. But they gradually encroached and occupied substantial portion by widening and extending the 'Bongias' through the suit land and other adjoining land without there being any consent or authority from the side of the plaintiffs. Even the defendants were still in the spree of widening the road further. In paragraph 10 of the plaint, it was further disclosed that the alleged path was under occupation of the defendants which is described in Schedule-A to the plaint and their predecessors-in-interest and after them the defendants continued encroaching upon and gradually occupying the same by widening/extending the 'bongias' on and from the date of user of the path without any authority. But while admitting that the 'bongia' was being used by the defendants or their predecessors the plaintiffs did not make mention of any date as to when such user had started. Title Suit No.99/1986 of the court of learned Assistant District Judge, Jorhat was registered thereby and summons were issued to the defendants.
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3. The defendants appeared and submitted written statement and staked claim in paragraphs 8 to 12 of the written statement that they have been using the path since 1961. According to them, the land had been orally gifted by the plaintiffs' predecessor to the people of the locality for user as a path who, in turn, handed it over to the panchayat and the panchayat has been maintaining it by receiving grants from the government. Thus, the defendants claimed that they had been using the suit path for a period of over 26 years. They prayed that the suit be dismissed with cost.
4. It appears that that the suit was subsequently re-numbered as Title Suit No.162/1994 after the same was transferred to the court of learned Civil Judge (Junior Division) No.1, Jorhat on enhancement of pecuniary jurisdiction of the court of Munsiff. The learned trial court framed five issues and the same are quoted below :-
"1. Whether the suit is maintainable in its present form.
2. Whether the defendants have been using the suit land mentioned in Schedule A as a path since 1960 after it was orally gifted to the public by the father of the plaintiffs.
3. Whether the defendant No.17 is wrongfully occupying the land mentioned in Schedule B.
4. Whether the suit is barred by limitation.
5. To what relief/reliefs the parties are entitled to?"Page 4 of 12
5. In course of trial plaintiffs examined as many as five witnesses and adduced some documentary evidence while the defendants also examined four witnesses and adduced documentary evidence. The learned trial court held that the suit is maintainable in its present form, that the father of the plaintiffs did never donate any land to the people of the locality for the suit path and that defendants failed to prove that they had been using the path since 1960. Accordingly, Issue Nos.3 and 4 were also decided against the defendants and the suit of the plaintiffs was decreed in entirety.
6. The judgment and decree dated 18.06.2002 passed by the learned Civil Judge (Junior Division) No.1, Jorhat in the aforesaid suit was challenged in Title Appeal No.3/2002 of the court of learned Additional District Judge at Jorhat. The learned First Appellate Court by the judgment and decree dated 11.08.2003 dismissed the appeal upholding the judgment and decree passed by the learned trial court. But in doing so, the learned First Appellate Court framed an additional issue as follows :-
"1) Whether the defendants acquired easementary right over the suit land for having urged it in a way required by law for more than 20 years."
7. The learned First Appellate Court held that none of the parties desired to adduce additional evidence and that the materials available on record were sufficient to decide the aforesaid Page 5 of 12 additional issue. However, thereafter, a point for determination was framed as to whether or not the judgment of the trial court was passed according to law keeping the evidence on record in view. It appears that the learned First Appellate Court thereafter decided Issue No.2 and held that the father of the plaintiff did not make any gift in favour of the defendants. This is so done relying on the provision of Section 123 of the Transfer of Property Act and thereupon Issue No.2 was decided in the negative. The learned First Appellate Court also held that the provisions of Easement Act does not have application in Assam and so what was required is to see as to whether the defendants had acquired any right under Section 25 of the Limitation Act. But thereafter while deciding the additional issue, the learned First Appellate Court relied on a judgment of the Hon'ble Orissa High Court passed in a case involving easement and thereupon held that the defendants did not acquire any easementary right over the suit land. Having so found all the issues were re-decided in favour of the plaintiffs and consequently the appeal was dismissed. These two judgments and decrees passed by the learned courts below have been brought under challenge in the present Second Appeal. This Court while admitting the appeal on 28.10.2003 framed the following substantial question of law :-
"1. Whether in the facts and circumstances of the case, the first Appellate Court is legally right in deciding the new issue framed in the suit without referring the same Page 6 of 12 for trial to the trial court and whether the decision rendered in Appeal without obtaining the finding of the trial court on such issue is in accordance with law."
8. I have heard Mr. S. Ali, learned counsel for the appellants and Mr. N. C. Das, learned senior counsel assisted by Ms. K. Das, learned counsel appearing for the respondents. I have also perused the lower court records including the pleadings of the parties and the respective evidence adduced by them.
9. Having considered the averments made in the plaint it appears that the plaintiffs instituted the suit as a counterblast of institution of a proceeding by the defendants under Section 133 Cr.P.C. before the court of Executive Magistrate. The defendants first went to the District Magistracy praying for interference alleging that the plaintiffs had blocked their way illegally and the Executive Magistrate issued process to the present plaintiffs. In that proceeding the defendants asserted that Moloka Dutta had made oral gift of the land in favour of the public thereupon the road came into existence since 1961. The road was being used by them all along till interrupted by the plaintiffs in between. Under such circumstances, the plaintiffs apprehended that their right, title and interest over the suit land was clouded and accordingly they instituted the suit for negative declaration that the defendants did not acquire any easementary right over the suit land. But in doing Page 7 of 12 so, the plaintiffs candidly admitted in the body of the plaint that there was a path and that the path was being used from the time by the predecessors of the defendants. Even the plaintiffs named the said two predecessors as Bhalla and Filli. The existence of road over the suit land was thus an admitted fact and so when plaintiffs made a prayer that the defendants did not acquire easementary right, the plaintiffs were duty-bound to set up necessary material facts to show that the conditions enumerated under Section 25 of the Limitation Act, 1963 do not exist in the present case. The plaintiffs did not say since when the road was in existence. The plaintiffs also did not say whether the defendants had any other alternative means for ingress or egress. The premises that defendants acquired any right of use over the suit path was based on the proposition that Moloka Dutta had never made any oral gift in favour of the public. But once the provisions of Section 25 of the Limitation Act are perused it does not show that entitlement of the right of user by prescription would be preceded by any gift whatsoever. What is required is that the user must use the way openly and peaceably asserting right of user for a period of 20 years or more before the date of institution of the suit. Had the defendants been the plaintiffs, in that case, it would have been expected the defendants to assert that the date since when they had been making use of the land as path and it would have been expected from them to assert the aforesaid conditions inherent in Section 25 of the Limitation Act. Page 8 of 12 The position is altogether different in the present case. Here, plaintiffs have come forward for a negative declaration that the defendants have not acquired right of user to the way on the face of their assertion made in the proceeding under Section 133 Cr.P.C. pending before the Executive Magistrate and so definitely burden was on the plaintiffs to show since when the defendants had been using the land as way, whether such user was open and peaceable and if so whether it was on assertion of their right to use the same. It was also a necessary ingredient to show that the defendants had an alternative way for ingress and egress. Incidentally, specific recital of the aforesaid averments are not traceable in the body of the plaint.
10. Defendants appearing in the case filed the written statement in the similar fashion and they also did not deal with the averments made in the plaint parawise. They had not gone for specific denial of the averments made in various paragraphs of the plaint. They asserted in paragraphs 7 to 10 that a road came into existence upon oral gift made by Moloka Dutta in the past. Since 1961 the road was in existence which was being maintained by the panchayat on the grant of the government. Having so pleaded they took burden on their shoulder to prove that such grants were extended by the government and that such repair work was made by the panchayat. Apart from placing some papers as Exts-Ka to Page 9 of 12 Chha on record that the road was maintained by panchayat, they did not make any attempt to examine any of the office bearers of the panchayat or to call for records from the panchayat to prove such maintenance. The defendants similarly did not discharge their burden to show that since 1961 the road was being maintained by the government. They produced some papers. Ext-Ka is a certificate given by the then panchayat secretary. As the panchayat secretary who had issued the certificate had died in the meantime his son was examined as DW 3 who identified the signature of his father. Thus, there was some endeavour from the side of the defendants in support of their claim that the road has been in existence since 1961.
11. Even if the defendants have led any evidence, the averments made in the plaint also would go to show that at least there was a road in existence. PW 3 stated in the course of his cross-examination that he had been witnessing the road since the time of his childhood. PW 3 was 50 years of age as on the date of deposition and so from the evidence led by the plaintiffs at least some materials have come out to show that the road was in existence for over 25 years. The PW 5 is the Circle Officer. He deposed that on the order of the court he visited the suit land and found the road in existence and was being used by the public. But PW 5 could not say since when the road was in existence. All these averments Page 10 of 12 irresistively point to the same conclusion that materials available on record were not sufficient either to hold that the defendants had not been using the road for over a period of 20 years as required under Section 25 of the Limitation Act nor was it possible to hold that they were definitely using the same openly, peaceably and on assertion of their right of user without any interruption from the real owner. This being the position, the finding of the learned First Appellate Court that there are sufficient materials available on record to decide the additional issue by him does not appear to be correct. The learned First Appellate Court ought to have directed the parties to lead further evidence to prove their respective cases after an additional issue was framed by the appellate court. This could have been done by keeping the appeal pending and directing the learned trial court to record evidence as could be adduced by the parties and thereafter on the basis of the said evidence the first appeal could have been decided. In the alternative, the learned First Appellate Court could have remanded the matter to the trial court for affording opportunities to the parties to lead their respective evidence and thereafter to decide the case afresh. Neither of these courses of action was adopted by the learned First Appellate Court and instead decided the appeal on the basis of the materials available on record and so the sole substantial question of law is required to be decided in the negative and it is accordingly decided.
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12. The Second Appeal stands allowed. No order as to cost.
13. In view of the discussions made above, this Court feels inclined to take the second alternative referred to in the preceding paragraphs and accordingly the impugned judgment and decree is set aside and the matter is remanded to the learned trial court for affording adequate opportunities to the respective parties. The learned trial court shall thereafter pass the judgment afresh deciding the additional issue framed by the learned First Appellate Court. Since the suit is of the year 1986 the same shall be done as expeditiously as possible, preferably within a period of six months from the date of receipt of records from this Court.
Send back the LCR immediately.
JUDGE T U Choudhury Page 12 of 12