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2018 Supreme(Tri) 252
IN THE HIGH COURT OF TRIPURA, AGARTALA
S. TALAPATRA, J.
Smt. Manjuri Banik W/o. Late Chintaharan Banik & Ors. - Appellants
Versus
Sri Ajoy Narsingha Bhattacharjee S/o. Late Ajit Kumar Bhattacharjee & Ors. - Respondents
RSA No. 45 of 2015
Decided On : 23-11-2018
For the Appellants : Mr. B. Majumder, Adv.
For the Respondents: Ms. S. Deb Gupta, Adv.
The main legal point established in the judgment is the interpretation and application of the Indian Easement Act, particularly the principles of consolidation of easementary rights, burden of proof, and easement of necessity.
Headnote:
EASEMENTARY RIGHT - PROPERTY DISPUTE - Indian Easement Act - Section 15, Section 13, Section 21, Section 22, Section 23, Section 41 - The court discussed the consolidation of easementary rights, the burden of proof, and the legal principles of easement of necessity. The court's decision was influenced by the interpretation of the Indian Easement Act and the principles of easementary rights.
Fact of the Case:
The plaintiff-appellants filed a suit for declaration of right, title, and interest over a disputed path way and for confirmation of their possession. The defendant-respondents claimed an easementary right over the path way. The trial court decreed in favor of the plaintiffs, but the first appellate court reversed the decision, granting a decree in favor of the plaintiff-respondent for right and title over the land but denying perpetual injunction against the defendant-appellant from using the land as a path way.
Finding of the Court:
The first appellate court reversed the trial court's decision, holding that the defendant-appellant had established a right of enjoyment over the disputed path way for ingress and egress to his house, and the plaintiff-respondent was not entitled to a decree of perpetual injunction. The court also found that the plaintiffs failed to prove the existence of an alternative path way to demolish the claim of absolute necessity of easement by the defendant.
Issues: The issues included the consolidation of easementary rights, the burden of proof, and the legal principles of easement of necessity.
Ratio Decidendi: The court held that the defendant-appellant had established a right of enjoyment over the disputed path way for ingress and egress to his house, and the plaintiff-respondent was not entitled to a decree of perpetual injunction. The court also found that the plaintiffs failed to prove the existence of an alternative path way to demolish the claim of absolute necessity of easement by the defendant.
Final Decision: The appeal was dismissed, and the court upheld the first appellate court's decision, granting a decree in favor of the plaintiff-respondent for right and title over the land but denying perpetual injunction against the defendant-appellant from using the land as a path way.
This appeal under Section 100 of the CPC, which emerges from the judgment dated 31.08.2015 delivered in Title Appeal No.19 of 2013 by the Addl. District Judge, No.2, West Tripura, Agartala was admitted for hearing on the following substantial questions of law :
(1) Whether the judgment and decree passed by the first appellate court suffers from perversity for consideration of inadmissible evidence and
(2) Whether the defendant-respondents can maintain a claim of easementary right and Court can pass a decree declaring easementary right while the defendant-respondents were held to be permissible possessor of the suit property.
Be it noted that the leave was granted in the exceptional manner by the order dated 05.01.2016, whereby those substantial questions of law were framed, to raise the further substantial questions of law at the time of hearing.
2. It is apparent that which evidence is inadmissible has not been specified while framing the substantial questions of law. For purpose of appreciation of the challenge in this appeal, the relevant fact may briefly be introduced at the outset.
The plaintiff-appellants instituted the said suit for declaration of the right, title and interest over the suit land as described in the schedule-B of the plaint and for confirmation of their possession over the said land along with the consequential relief of perpetual injunction against the defendant-respondents No.1 & 2. To be precise, the plaintiff-appellants urged for the perpetual injunction restraining the defendant-respondents No.1 & 2 from entering into the suit land which is a path way according to the plaintiff-appellants and described in the schedule-B of the plaint. For purpose of further reference, the schedule-B from the plaint is extracted hereunder :
SCHEDULE ‘B’ (SUIT LAND)
Within District- West Tripura, Mouja-Agartala, Sheet No.1, Tehshil- Sadar West T.K., Touji No.158, Sub-Division and Revenue Circle-Sadar, land appertained in finally published Jote Khatian No.928, old C.S. Plot No.600(P), at present C.S. Plot No.1674, path measuring 0050 satak, butted and bounded by :
North : C.S. Plot No.1673 (Plaintiffs)
South : C.S. Plot No.1675, Road;
East : Road;
West : C.S. Plot No.1681;
Within this boundary land measuring 0050 satak.
3. The principal defendant-respondents, hereinafter referred to as the defendant-respondent or the defendant, by filing the written statement had asserted that on 21.12.1986 an agreement was made between the predecessor of the plaintiffs and the father of the defendant for giving limited right of use of the said path way for purpose of easement. It would be apposite to reproduce the relevant part of the written statement in this regard.
“Moreover it is recorded in the Khatian No.434 that the suit land is a path way where the defendant opposite party is maintained his right to easement as has come into existence vide the agreement dated 21.12.1986. It is also mention that in column No.24 of Khatian No.928 the suit land is recorded as path way which is used by the occupier of the adjacent land.”
4. In the plaint it has been asserted by the plaintiffs that the defendant’s house is situated with ‘the intervention of 3[three] houses from the suit land though he has no right, title and interest to use the land of C.S. Plot No.1674 because there is an alternative path way, passage already existing upon the land of C.S. Plot No.1675 and wherefrom easily vestible to ingress and egress in the house of the defendant without touching the suit land. But unnecessarily, he is trying to create the problem and also trying to grab the suit land of the plaintiffs. Therefore, he denied the title of the plaintiffs upon the land of C.S. Plot No.1674.’
5. In response to the said claim, the defendant has categorically denied that on spot verification the land of the predecessor of the plaintiffs was demarcated from the purported government khash land which is treated as the public path way and recorded in the record of right
