IMPORTANT POINT
Long-term use of a passage can establish prescriptive easement rights, overriding claims of exclusive ownership if not substantiated.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This second appeal has been preferred against judgment and decree passed by learned Additional District Judge 3rd Court Barasat in Title Appeal. No. 88 of 1994 dated 11th June, 1997, arising out of judgment and decree passed by Additional Munsif at Sealdah in Title Suit. No. 210 of 1982 on 26th May, 1994. By the impugned judgment the court below has set aside the order of dismissal passed by the Trial Court and granted relief in favour of the plaintiff/respondents herein.

2. The subject matter of the plaint case is a strip of land wherein defendant/appellants herein claimed ownership being a part and portion of 28 & 29 Ramchandra Bagchi Lane, Kolkata. The plaintiff filed the suit for declaration that the said strip of land is their only common passage for ingress and egress from their respective houses and the defendants have no right to obstruct or construct on the said passage and as such plaintiffs also prayed for permanent injunction along with declaration of their right to user of the said passage. Plaintiffs further case is that they are using the said passage for about 100 years and if the same is blocked they will be landlocked.

3. Appellants herein as defendants appeared in the said suit and filed written statement. The specific case of the defendant in the written statement is that they have not interferred with the suit passage and had infact contributed some land to make the said passage 3 ft. Wide and in para 2 of the written statement they have also claimed that they are the co-sharer of the said passage in question and have the same right to use it along with the plaintiffs.

4. During trial the defendants tried to agitate that the plaintiffs have their alternative passage for their ingress and egress in the western side of their land and as such even if the said passage is blocked by the defendants, plaintiffs by no means will be landlocked. Learned Trial Court after hearing the parties came to a finding that the plaintiffs failed to establish that they are using suit passage and plaintiffs only relied upon the defendant’s purchase deed dated 12th August, 1970 but the defendants have their specific case that the said strip of land, namely suit passage is exclusively owned by them and it is their private passage. The Trial court also held that the plaintiffs have not challenged the local investigation commission report which states that the said strip of land appertains to dag no. 769 and 769/912. Accordingly court below did not believe that the suit passage is a common passage and held that the said passage is owned by the defendants but he observed that the plaintiffs may have use the said passage on occasion. Trial Court based his judgment on the finding that the plaintiffs have alternative passage on the western side of defendant’s premises and as such plaintiffs claim that the suit passage is their only passage for ingress and egress, has got no substance and thereby Trial Court dismissed plaintiff’s suit.

5. Being aggrieved by the said order the plaintiffs preferred appeal before the 1st Appellate court. Learned 1st Appellate court after hearing both the parties came to a finding that no clear picture is coming to show that the appellants/plaintiffs have any alternative passage for ingress and egress to their house from the suit property, though the case of plaintiff no. 2 is otherwise since he has an opening to the Ramchandra Baghci Lane having frontage of his house towards the said lane but in the case of other plaintiffs it has not been clearly established that they have alternative passage for ingress and eagress. The court below further held that neither party has brought independent witness in support of their claim about user of suit passage but fact remains that plaintiffs/appellants came into the premises no. 30 Ram Chandra Bagchi Lane sufficiently ahead of the respondents/defendants and their house lies on the southern side of the house of the defendants. The court