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Judgment
Heard Ms. P. Dhar, learned counsel appearing for the appellant. This is an appeal under Section 100 of the CPC from the judgment dated 29.08.2019 delivered in Title Appeal No.24 of 2019 by the Additional District Judge, Unakoti Judicial District, Kailashahar.
The appellant is the defendant in the suit being Title Suit No.28 of 2016 as filed by the respondents No.1 & 2. The suit was filed for declaration that the respondents No.1 & 2 have the right to take and draw an electricity line to their residential plot as described in the first schedule, over the suit path as described in the second schedule. As the appellant herein raised objection against laying of electricity line over that suit path, the mandatory injunction has been sought for directing the respondents No.1 & 2 for withdrawing their objection or resistance. There are other consequential reliefs which were not material in this appeal.
The suit was dismissed by the judgment dated 04.04.2019 as passed by the Civil Judge [Jr. Division], Kailashahar, Unakoti District in Title Suit No.28 of 2016. The respondents No.1 & 2, being aggrieved thereof, preferred the first appeal in the court of the District Judge, Unakoti Judicial District, Kailashahar being Title Appeal No.24 of 2019 which was later on transferred and heard by the Addl. District Judge. By the impugned judgment dated 29.08.2019, the judgment of the trial court was reversed and the suit has been decreed on the ground of necessity of easement.
It has been observed that even if the title is with the defendant but the right to easement being the dominant right cannot be curbed by the person having the title. It has been observed that is/was easementory right of drawing electricity or water line. On that premises, the suit was decreed. Now being aggrieved by that judgment, the defendant-appellant has filed this appeal.
The appeal is admitted for hearing on the following substantial questions of law:
(i) Whether non-consideration of fact that the Easement Act has not been extended to the State of Tripura has vitiated the consequential finding?
(ii) Whether there is any necessity of easement of the plaintiff-respondents No.1 & 2 over the suit path and whether might compel the appellant to allow the respondents No.1 & 2 draw the electricity line or water line through or over the suit path way?
Issue notice, returnable on 11.11.2019.
Call for the records.
Since Mr. S. Lodh, learned counsel appears and accepts the notice for the respondents No.1 & 2, no formal notice needs be issued. However, the appellant shall take steps for service of notice on the respondents No.3 & 4 by Dasti. Requisites shall invariably be filed by 03.10.2019.
The appellant shall file the affidavit of service on 31.10.2019. The Registry shall arrange to procure the records within the returnable date which is fixed on 11.11.2019, when the matter will be heard considering urgency for disposal.
In the meanwhile, the respondents No.1 & 2 are restrained from taking any attempt to draw electricity line through the suit path way. However, Mr. Lodh, learned counsel has drawn notice of this court that one suit is pending in respect of the right to use the said path way. He has stated that the appellant has been creating obstruction for ingress and egress to the residential plot of the respondents No.1 & 2. This order will not create any bar to seek the relief in respect of any obstruction to the court.