The principles of the Indian Easements Act, 1882, can be applied in West Bengal, even though the Act itself is not applicable. A sale deed executed prior in time has priority over a subsequent sale deed, even if the subsequent sale deed is executed in favor of a person who has an irrevocable license over the property.

JUDGMENT :

Supratim Bhattacharya, J.

1. The instant appeal has been preferred by the appellant being aggrieved by and dissatisfied with the judgment and decree passed in Title Appeal being Title Appeal No. 212 of 2003 dated 21.02.2007 by the Ld. Additional District Judge 3rd Court Howrah.

2. In the said judgment the First Appellate Court has allowed the appeal on contest setting aside the Judgment and Decree passed by the Ld. Trial Court which has been passed in the Title Suit being Title Suit No. 122 of 1997 dated 07.08. 2003 passed by the Ld. Civil Judge Jr. Divn. 6th Court Howrah.

3. The fact of the lis is that one Susanta Kr. Mandi had filed the Title Suit No. 122 of 1997 against Chanchala Malik and Shambhunath Das being the defendants No. 1 and 2 respectively praying for a decree for declaration that the sale deed dated 14.05.1991 between the defendants No. 1 and 2 is fraudulent and illegal as well as ultra vires and not binding upon the plaintiff and in addition had also prayed for a decree of declaration that the defendants No. 1 and 2 are the licensee and be evicted in due course of law.

4. The Ld. Trial Judge after thorough analysis and considering the evidence both oral and documentary has allowed the suit on contest against the defendant No. 2 that is Shambhunath Das and ex parte against the defendant No.1 namely Chanchala Malik.

5. Against the aforementioned judgment and decree passed by the Ld. Trial Court, the defendant No. 2 namely Shambhunath Das preferred the Title Appeal being Title Appeal No. 212 of 2003 and the said appeal has been allowed on contest by setting aside the judgment and decree passed by the Ld. Trial Court.

6. The Ld. Counsel appearing on behalf of the appellant has submitted that the Appellate Court erred in reversing the judgment of the Ld. Trial Court by applying Section 60 Clause (b) of the Indian Easement Act, 1882 as because the Easement Act does not apply in West Bengal. Ld. Counsel has further submitted that the defendant No. 2 namely Shambhunath Das who himself has deposed before the Trial Court as DW1 has stated that he was present at the time of the first sale deed dated 6.2.1981 whereby Bechu Malik and Kalipada Malik sold the ‘B’ schedule property to Chanchala Malik, defendant No. 1. He further deposed that the defendant No. 1 namely Chanchala Malik again sold that property to the plaintiff on 11.4.1986 therefore no question arises as regards the execution of a second deed in favour of the defendant No. 2. The Ld. Counsel has further submitted that for the sake of argument if it is taken into consideration that Chanchala Malik had first sold the ‘B’ schedule property to the plaintiff and thereafter once again has sold the self same property to Shambhunath Das through a sale deed dated 14.5.1991 then in view of Section 48 of Transfer of Property Act the prior transfer by deed of sale will prevail. The Ld. Counsel banking upon the aforesaid submission has emphasized the fact that the judgment of the First Appellate Court which has reversed the judgment of the Trial Court is not at all tenable in law and not acceptable in the purview of law.

7. The Ld. Counsel appearing on behalf of the respondent namely Shambhunath Das has submitted that the appellant has no ground to succeed. He has further stated that the contentions of the appellant/ plaintiff are not at all tenable in law. He has further stated that the suit has been filed beyond the statutory period of filing and as such and as such is barred by the law of limitation. Ld. Counsel has further submitted that the respondent in the year 1979 got licence from the original owner that is Kalipada and Bechuram and with the permission of the owners of the land had made construction over the ‘B’ schedule property and is residing there with his family. He has further submitted that the said licence is not revocable. He has further submitted that the appellant/plaintiff did not make any construction over the ‘B’ schedule property and had not given