IMPORTANT POINT
Easementary rights must be clearly established through evidence of grant or necessity, and a plaintiff must seek a declaration of such rights to challenge property alienation.

JUDGMENT

Sashikanta Mishra, J.

The Plaintiff is the Appellant against the reversing judgment passed by learned 1st Addl. Sessions Judge, Cuttack on 29.11.2023 followed by decree on 11.12.2023 in R.F.A. No.37/2020 whereby the judgment dated 30.11.2019 followed by decree dated 05.12.2019 passed by learned 4th Addl. Civil Judge (Sr. Division), Cuttack, in C.S. No.553/2017 was set aside and the appeal was allowed.

2. For convenience, the parties are referred to as per their respective status in the trial Court.

3. The Plaintiff filed the suit for declaration that the Sale Deed No.121 dated 05.1.2013 executed by Defendant No.2 in favour of Defendant No.1 is illegal, void, inoperative and not binding on her and that no right had accrued to Defendant No.1 thereby, permanent injunction against Defendant No.1 restraining him from creating any disturbance over 'B' Schedule property and from obstructing the use of the Plaintiff over the same and other reliefs. The case of the Plaintiff as set out in the plaint, briefly stated, is that she is the owner in possession of suit Schedule 'A' land. The property described in Schedule 'B' is a road for ingress and egress of the Plaintiff to her residential house situate over 'A' Schedule property. The Schedule 'A' land comprising an area of Ac.0.70 dec. was recorded in the name of the Plaintiff as per order passed in Mutation Case No.1307/1996 and thereafter on the application of the Appellant under Section 8-A of the O.L.R Act filed before the Tahasildar, Cuttack, the nature (kisam) of the land was converted to homestead (Gharabari). The Plaintiff thereafter constructed her residential house over the suit land and has been residing therein without any dispute. It is her further case that her vendor left the Schedule B' property to be used by her as road for ingress and egress to her residential house over Schedule 'A' land. Said road was also used by adjoining neighbours and as such, it has become the common road of the Plaintiff and Defendant No.1 along with other persons of the area. Defendant No.2 being the owner of 'B' schedule property has thus granted the right of easement to the Plaintiff and Defendant No.1. The Plaintiff by filing Title Suit No. 160/1994 got an award in her favour on the basis of a village Panchayatnama, which was reduced to writing along with a sketch map appended thereto wherein 'B' schedule property was shown as road over Plot No.426 connecting to the Plaintiff's land over Schedule 'A'. Said award was made rule of the Court and a decree was passed granting absolute right to the Plaintiff over 'A' Schedule property. Further, a unregistered agreement was also executed between the Plaintiff and Defendant No.l on 19.3.1994 granting right of easement in respect of 'B' schedule property. Thus, the Defendant No.1 having no manner of right to make any construction over the 'B' schedule land (road) stocked building materials with the intent of making construction. The Plaintiff objected to the same and also initiated proceeding under Section 144 of Cr.P.C. wherein a preliminary order was passed restraining Defendant No.1 from making any obstruction over Schedule B' property. In course of such proceeding, it came to light that Defendant No.1 has alienated 'B' schedule property in favour of Defendant No.1 vide R.S.D. No.121 dated 05.1.2013 despite not having any alienable right and ignoring the right of easement granted by him earlier to the plaintiff and other persons. It is also stated that the right, title and interest of Defendant No.1 has been declared in T.S. No.429/1995 in respect of an area of Ac.0.20 decs. under Hal Plot No.426. In the said suit, 'B' schedule property was also described as road meant for the use of Defendant No.1 as well as the Plaintiff. Defendant No.1, by producing the sale deed dated 5.1.2013 has managed to record her name in the R.O.R. Since the sale deed executed by Defendant No.2 in favour of Defendant No.1 seriously affects the right of easement of t