JUDGMENT AND ORDER

1. This Second Appeal has been preferred against the judgment dated 23.08.2001 and decree dated 31.08.2001 passed by the learned District Judge, Jorhat in Title Appeal No.2/2001 allowing the appeal by reversing the judgment dated 04.12.2000 and decree dated 21.12.2000 passed by the learned Civil Judge (Senior Division), Jorhat in Title Suit No.67/1987 decreeing the suit of the appellant/plaintiff.

2. The Second Appeal had been admitted to be heard on the following substantial question of law:-

“Whether non-furnishing of particulars of Schedule-B land makes the property unidentifiable when Schedule-B land is a part of Schedule-A land where full particulars are given as has been held by the learned court below?”

The appellant had been given the liberty to urge any other substantial question of law if so emerging in the course of hearing of the appeal.

3. The appellant/plaintiff had preferred the suit being Title Suit No.67/1987 in the Court of learned Civil Judge (Senior Division), Jorhat, inter alia, praying for a decree declaring absolute, unfettered and exclusive right of the suit land to enjoy the same without any interference by virtue of his interest in it; a decree for permanent injunction and for other consequential reliefs. The case of the plaintiff/appellant, in brief, is that the plaintiff had purchased a plot of land measuring 1 Bigha 3 Kathas 12 Lechas covered by Dag No.750 of PP No.118 of Charaibahi mouza, No.1 Chaudang Gaon in the district of Jorhat, Assam which is the Schedule-A land. The said land was purchased by the plaintiff/appellant from one Maya Lingdoh by a registered deed of sale executed on 08.04.1987 on the basis of which the possession of the land was handed over to the plaintiff. The land in Schedule – A originally belonged to Derrila Lingdoh who resided therein since the year 1935. After her death the said plot of land was jointly inherited by Maya Lingdoh and Idoriah Lingdoh, both nieces of Derrila Lingdoh. The strip of land measuring 18 ft. X 66 ft. running from Gar-Ali to the Schedule-A land had been used as a pathway originally by Derrila Lingdoh as the same was the only way for ingress and egress to the Schedule-A land. After the purchase of the said land by the plaintiff/appellant by means of the registered sale deed the plaintiff had also started using the Schedule-B strip of land as a pathway for ingress and egress to his Schedule-A land to which the defendant created obstruction that had lead to the filing of the title suit. Therefore, the entitlement of the right of way of the plaintiff over the Schedule-B land is the subject matter of the present suit.

4. The defendant contested the suit of the plaintiff by filing written statements whereby he has categorically denied the existence of the Schedule-B strip of land originating from Gar-ali, Jorhat and terminating to the land in Schedule-A to the plaint which was being described by the plaintiff as the only passage for ingress and egress to his land. The defendant further took a plea that the strip of land adjoining the land in Schedule-A was standing in the records of rights in the name of the defendant along with other co-pattadars and was being lawfully possessed and enjoyed peacefully and uninterruptedly by the defendant along with other co-pattadars. The defendant further took a plea that Smti. Maya Lingdoh i.e. the vendor of the plaintiff/appellant was not competent to execute the deed of sale in respect of the Schedule-A land in favour of the plaintiff/appellant and therefore the suit was liable to be dismissed.

5. On the basis of the pleadings the learned trial Court framed as many as three issues which as are follows :-

ISSUES

(1) Whether there is a cause of action for the suit?

(2) Whether the plaintiff is entitled in law to use and utilize the 18 ft. X 66 ft. strip of land described in Schedule-B of the plaint from Gar-ali to the land described in Schedule-A of the plaint ?

(3) Whether the plaintiff is entitled to

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