The main legal point established in the judgment is the recognition and affirmation of easementary rights by prescription under Section 15 of the Indian Easements Act, 1882, based on the plaintiff's continuous, uninterrupted, and peaceable use of the common passage for over 20 years.

JUDGMENT :

1. The instant second appeal is directed to be heard on the following substantial questions of law :-

Whether both the Courts below committed substantial error of law by not holding that the plaintiff/respondent herein being the owner of holding No.29, Baje Shibpur 2nd Bye Lane at best claim for easementary right to use the 10 ft. wide common passage of the appellant only to the extent of ingress and egress to Baje Shibpur 2nd Bye Lane through their 4 ft. 4 inches passage and not beyond that or not.

2. Now the facts that resulted in filing of the suit by the respondent/plaintiff:-

3. The plaintiff instituted Title Suit No.199 of 2009 in the 2nd Court of the Learned Civil Judge (Junior Division), Howrah stating, inter alia, that he is the absolute owner of premises No.29, Baje Shibpur 2nd Bye Lane by dint of a registered deed of partition executed on 12th April, 1972. On the contiguous north of the plaintiff's premises, there is a 10 ft. wide common passage running from east to west and culminates with Baje Shibpur 2nd Bye Lane. The plaintiff and prior to his ownership, predecessor-in-interest of premises No.29 Baje Shibpur 2nd Bye Lane has been/had been using the said passage with all its easementary rights. They have been using the said passage for the purpose of ingress and egress upto the northern end of their house, for effecting repairing of the northern side wall and also for discharging rain water from the roof of their house etc. The electrical and water pipe lane of the premises of the plaintiff run beneath the said passage. Thus, the plaintiff has been enjoying right of easement over the said common passage continuously, uninterruptedly, openly and without any obstruction from the defendants or any other contiguous owner. The defendants, however, constructed a wall along the northern side of the plaintiff's premises and thereby blocked the plaintiff's free access to the said passage.

4. It is pertinent to mention here that premises No.29 Baje Shibpur 2nd Bye Lane has been depicted as 'A' schedule property, while the said common passage is described as 'B' schedule property and subsequently constructed wall measuring about 50 ft. 3 inches in length and 3 ft. in height is described as 'C' schedule property in the plaint and the above-mentioned properties will be described herein below indicating the schedule as stated in the plaint for the sake of brevity and convenience.

5. On being obstructed as such, the plaintiff prayed for a decree of declaration that he is the absolute owner of 'A' schedule property and he has acquired an indefeasible right of easement over 'B' schedule property to reach, use and enjoy elevated portion of northern side wall of 'A' schedule property (roak) and other consequential reliefs in the form of permanent prohibitory and mandatory injunction.

6. The defendants/appellants contested the suit by filing written statement denying all material allegations made out against them by the plaintiff. Specific case of the defendants is that they are absolute owners and occupiers of holding No.27/2, 27/3, 27/3/1, 27/3A, 27/4, 27/6 and 27/7 Baje Shibpur 2nd Bye Lane. The 'B' schedule property is situated on holding No.27/5 and it is the exclusive passage of the defendants to reach Baje Shibpur 2nd Bye Lane. The plaintiff has no manner of right, title and interest over the said passage. It is further alleged that the plaintiff had always greedy eye to grab 'B' schedule property. So, they stated some illegal construction on the northern wall of their house, when the defendants protested and raised objection against such illegal construction, the plaintiff filed Title Suit No.199 of 2009 against the defendants.

7. On the basis of the pleadings, the learned trial judge framed as many as eight issues.

8. During trial of the suit, on the prayer of the plaintiff, local inspection was held.

9. Parties led evidence, both oral and documentary which I propose to refer and discuss subsequently in the body of the ju