Gauhati High Court
Sri Jyotish Phukan And Anr vs Dibrugarh University And 2 Ors on 7 March, 2019
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/4
GAHC010128672018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA 202/2018
1:SRI JYOTISH PHUKAN AND ANR
S/O LATE BHUBAN PHUKAN
R/O BAMAPATHAR RATANPUR (KOMARGAON)
PO RAJABHETA
PS AND DIST DIBRUGARH
ASSAM
786002
2: SRI GIRIN GOGOI
S/O LATE BIREN CHANDRA GOGOI
R/O BAMAPATHAR RATANPUR (KOMARGAON)
PO RAJABHETA
PS AND DIST DIBRUGARH
ASSAM
78600
VERSUS
1:DIBRUGARH UNIVERSITY AND 2 ORS
A TEACHING RESIDENTIAL AFFILIATING UNIVERSITY ESTABLISHED AND
CONSTITUTED UNDER DIBRUGARH UNIVERSITY ACT 1965
PO, PS AND DISTRICT DIBRUGARH, ASSAM
786002
2:THE VICE CHANCELLOR
DIBRUGARH UNIVERSITY
PO
PS AND DIST DIBRUGARH
ASSAM
786002
3:THE REGISTRAR
DIBRUGARH UNIVERSITY
PO
PS AND DIST DIBRUGARH
ASSAM
78600
Page No.# 2/4
Advocate for the Petitioner : MR N N UPADHYAYA
Advocate for the Respondent : SC, DIB. UNIVERSITY
:: BEFORE ::
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
-O R D E R-
07.03.2019 Heard Mr. NN Upadhyay, learned counsel for the appellant and Mr. NC Das, learned Senior Counsel assisted by Ms. M Bora, learned counsel for the University Authority.
The present appellants filed Title Suit No. 24/2008 in the court of learned Munsiff No. 2, Dibrugarh seeking for permanent injunction restraining the defendants/respondents from interfering with the peaceful use of a path measuring 15' x 2297' (700 meter) within the Dibrugarh University campus. The suit path abuts the residential place(s) of the plaintiffs including other persons of that locality of Ratanpur Bampather (Kumar gaon), P.S. & district - Dibrugarh. The said road connects National Highway No. 37 (NH-37) abutting the university at the main entrance gate. As per the pleading, originally the said road was recorded in the land records as "Gobat" (cattle track). Since time immemorial the said suit path was used by the plaintiffs/ appellants along with the other habitants for ingress and egress from the residential places to the NH-37. In the mid part of April, 2008 it came to the notice of the plaintiffs/ appellants that the respondent university started construction of a pucca wall. Apprehending closure of the said path connecting the NH-37 a memorandum was submitted to the Vice-Chancellor of the University, defendant/respondent no. 2 in order to protect their ingress and egress through that path connecting the NH-37 from the locality. Later on, in the month of June, 2008 the construction work moved towards the closure of the said path and finding no other alternative the suit was preferred for a direction by way of a mandatory permanent injunction restraining the defendants/ respondents from obstructing the passage of the plaintiffs/appellants through the suit path connecting the NH-37.
The defendants/respondents filed joint written statement wherein it is stated that prior to the establishment of the Dibrugarh University, the said plot of land belonged to one tea estate under the name and style Rajabheta Tea Estate. There is an alternative road Page No.# 3/4 maintained by the PWD under the use of the plaintiffs/appellants and as such, the question of using the suit path as the ingress and egress of the plaintiffs/appellants does not arise. The suit path is purely a private road used by the defendants/respondents and as such, question of right of adverse possession nor any easementary right arising thereon in favour of plaintiffs/appellants does not arise at all.
On the basis of the pleadings of the parties, the learned trial court framed the following issues:-
i. Whether the suit is maintainable in law or facts?
ii. Whether plaintiff is entitled to use the suit land by way of enjoyment right
on the strength of prolonged possession and/or use of it?
iii. Whether the suit land is a private road for the use of defendants only?
iv. Whether plaintiffs are entitled to get decree as prayed for?
v. To what other relief(s) parties are entitled to?
The plaintiffs/appellants adduced evidence of 9 (nine) witnesses without any documentary evidence. On the other hand, the defendants/respondents adduced two witnesses with documentary evidence. The learned trial court dismissed the suit and being aggrieved, Title Appeal No. 4/2016 was filed by the plaintiffs/appellants in the court of learned Civil Judge at Dibrugarh. The said appeal was also dismissed vide judgment and decree dated 18.01.2018. The learned first appellate court relying on the case laws of Panchu Gopal Barua & others vs. Umesh Chandra Goswami & others, reported in (1997) 4 SCC 713, held that there is no applicability of the Easement Act in the State of Assam. However, as the facts pleaded in the plaint are not with respect to the right of the plaintiffs/appellants under the said Act, the learned court below came to the finding that although the plaintiffs and other co-villagers used the suit "Gobat" they have no legal right over the same. On the other hand, it was held by the learned court below that all the witnesses of the plaintiffs' side in their evidence admitted the fact that they have alternative path to the NH-37 and only because of shortening the distance in reaching the NH-37 the plaintiffs/appellants made their claim. Being aggrieved by the said judgment and decree dated 18.01.2018 of the learned first appellate court in Title Appeal No. 4/2016, the plaintiffs/appellants preferred this second appeal which is taken up for its admission today.
Page No.# 4/4 Mr. Upadhyay, learned counsel for the appellant, assails the findings of the court below as improper on the ground that the plaintiffs/appellants are endowed with the right to use the suit path permanently on the ground that it was used since time immemorial. It is further submitted that the learned courts below ought to have considered the inconvenience of the plaintiffs/appellants inasmuch as it involves a longer and hazardous route to the NH-37 through the alternative PWD path.
Mr. Das, learned Senior Counsel for the respondents, vehemently opposed the said submission of Mr. Upadhyay on the ground that as there is an alternative path for use of the plaintiffs/appellants there cannot be any claim on the suit path by the plaintiffs/appellants inasmuch as the land covering suit path originally belonged to a private tea estate which was allotted subsequently to the university and in order to secure the campus of the university, boundary walls were constructed and as per his submission the construction works of the boundary walls are already completed long back. I have considered the submissions of the learned counsel for the parties. The plaintiffs/appellants sought for the relief of permanent injunction which is a mandatory in nature. In order to grant such relief of mandatory injunction a duty is cast upon the plaintiffs/appellants to prove that the act of blocking the said passage would cause inconvenience of such nature which if outweighs the convenience of the defendants/respondents. In my opinion, the admission of the plaintiffs/appellants about the existence of the alternative path itself weakens the claim of the plaintiffs/appellants. Moreover, if it is weighed the balance of convenience tilts in favour of the defendants/respondents keeping in view the security of the said university campus which is a public interest. The factor of public interest has a role to play in granting the relief of permanent injunction. Without considering the said element of public interest a direction in the nature of mandatory injunction cannot be passed. Accordingly, I do not find any substantial question of law to be formulated in this second appeal for which this second appeal stands dismissed at the admission stage.
JUDGE Comparing Assistant