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Judgment
Heard Mr. PP Baruah, learned counsel for the appellants and Mr. GN Sahewalla, learned Senior Counsel assisted by Ms. B Sarma, learned
counsel for the respondents.
The present appellant is the defendant in Title Suit No. 72/1988 which was filed by theplaintiffs/ respondents for a stretch of land measuring
3’9’’ in width and 93’ in length for use as the approach path for their ingress and egress from their residential place to the main road.
The parties to this appeal purchased the land contiguous to each other by way of two registered separate sale deeds. As about 5 lechas of land was
acquired prior to their purchase for the PWD road abutting the plot of land of the appellant/ defendant and on the other hand, the plot of land which
falls on the back side of the land of the appellant/ defendant has no other alternative path for ingress and egress from the land of plaintiffs/
respondents from their residential place, there was an understanding between the parties to the suit and on the basis of that understanding the plaintiff/
respondent has been using the said stretch of land measuring 3’9’’ in width and 93’ in length as the path for ingress and egress. It is
alleged that the defendant/ appellant raised construction after obtaining building permission from Sivasagar Municipal Board and having come to the
knowledge of the plaintiff/ respondent they objected, however, the defendant/ appellant started preparation for carrying out of the construction. Finding
no other alternative, the suit was filed by the plaintiff/ respondent thereby seeking the relief for permanent injunction with respect to the said stretch of
land measuring 3’9’’ in width and 93’ in length. The suit was decreed and the learned first appellate court also upheld the findings of
the learned trial court. Thereafter the defendant/ appellant has preferred this second appeal challenging judgment and decree passed by the learned
first appellate court in Title Appeal No. 14/2001 in the court of learned Civil Judge (Sr. Divn.), Sivasagar.
This second appeal was admitted on 11.09.2003 on the following substantial questionsof law:-
Whether the learned Court below erred in law in passing the impugned decree on the basis of section 15 of the Easement Act which is not
applicable to the State of Assam?
Whether the decision of the learned Court below directing to pay the price of schedule ‘C’ land in question amounts to compulsory sale with
violition of the owner as is sustainable in law?
After extensive hearing by the learned counsel for the parties and keeping in view the nature of dispute, this court sent this matter for mediation but
the same could not be compromised. It is pertinent to mention here that prior to the initiation of the suit, the plaintiff/ respondent was upon the bona-
fide belief that an alternate road would be provided by the PWD department but the said plan did not materialise following which the said stretch of
land is the only path for the ingress and egress the plaintiff/ respondent from their residential place. After failure in the mediation process, both the
learned counsel after completion of the argument talked to their respective clients and submitted before this court that the defendant/ appellant has
agreed to allow the plaintiff/ respondent for their ingress and egress from their residential place a stretch of land measuring 3’ in width and 93’
in length which has been accepted by the plaintiff/ respondent. Considering submission of the learned counsel and their endeavour to come to an out of
the court settlement by the respective clients, I am of the opinion that without going into the merit of the second appeal, the judgment and decree dated
07.08.2000 passed in Title Suit No. 72/1988 by the learned Civil Judge (Jr. Divn.), Sivasagar and affirmed by the learned Civil Judge (Sr. Divn.),
Sivasagar in Title Appeal No. 14/2001 dated 10.04.2003 is modified to the extent mentioned hereinabove i.e. the plaintiff/ respondent shall use the
stretch of land measuring 3’ in width and 93’ in length as the passage for ingress and egress from their residential place. However, the
findings of the court below that the defendants/ appellants are entitled to the cost of land of the path measuring 3’ in width and 93’ in length in
satisfaction of the same, the said cost is fixed at Rs. 3,000/- as a token for the land measuring 3’ in width and 93’ in length.
This second appeal is disposed of.
Send back the LCRs and prepare a decree as per the modification mentioned and agreed to by the parties in this appeal.