Sakina Bewa vs Akkel Ali

Tarun Kumar Gupta, J.—The defendant is the appellant against a judgment of affirmation. The respondent No. 1 Akkel Ali filed a suit being Title Suit No. 172 of 1990 against principal defendant/appellant Sakina Bewa and proforma defendant (respondent Sirajuddin Sk.) praying for declaration of title and permanent injunction. The plaintiffs case was that out of 11 decimals in suit plot No. 4068 proforma respondent Sirajuddin possessed 7 decimals of land lying in the western portion of said plot. The defendant No. 1 got patta of two decimals of land in the suit plot lying to the north east portion. Though plaintiff purchased 2� decimals of land from owners but in measurement it was found to be two decimals lying in the south eastern portion of the suit plot No. 4068. The principal defendant having no right, title and interest or possession in any portion of said two decimals of land under possession of plaintiff was trying to encroach upon a portion of the same and hence was the suit for declaration of title and injunction.

Defendant No. 1/appellant filed a written statement alleging that she was in possession of two decimals of land lying in the north east portion of the suit plot for long 30 years and that out of two decimals of land of the plaintiff she was using one decimal of land as pathway for going to the main road lying to the south of plaintiffs land. It is further case that it was the only pathway from her house for going to the public pathway and that plaintiff had no right to obstruct her in using said pathway. She has further claimed that she already filed a Misc. Case being No. 24 of 1990 in the Court of learned Munsif Lalbag for purchase of the plaintiffs two decimals of land namely suit plot by exercising her right of pre-emption. Both sides adduced evidence, both oral and documentary, in the learned Trial Court. After contested hearing learned Trial Court declared plaintiffs right, title and interest and possession over 2� decimals of land - (minus) 4 ft. x 43 ft. being a passage. The defendant was restrained from disturbing the plaintiff''s peaceful possession in the suit property though he has a right of use of said passage only. The principal defendant/appellant being aggrieved filed an appeal being Title Appeal No. 44 of 1998 which was dismissed on contest. Hence, is this second appeal at the instance of the principal defendant.

At the time of admission of the second appeal the following substantial question of law was formulated.

Whether the learned courts below committed substantial error of law in not specifying the alleged right of way over the disputed property.

Learned counsel appearing for the defendant appellant, submits that though learned Courts below admitted that the defendant No. 1/appellant had no way other than the pathway running through suit property but only allowed the passage of four feet width and that the width of the passage should have been more spacious to allow passing of a vehicle. According to him, the width of the passage should have been at least six feet.

Mr. Partha Pratim Roy, learned counsel for the plaintiff respondent No. 1, on the other hand, submits that learned Courts below allowed said land of 43 feet in length and 4 feet in width as per report of the learned Advocate Commissioner. He further submits that there was no convincing evidence on record to show that the defendant No. 1 appellant ever used any pathway passing through the suit property having width of more than four feet.

I have considered the submissions made by learned counsels of the parties in the backdrop of the judgments of learned Courts below vis-a-vis the evidence on record. It appears from the evidence on record that there is no dispute that the appellant defendant had her house just to the north of the plaintiff/respondent No. 1''s property. The title of the parties to their respective properties is well established. It came out from evidence that there is a public pathway to the south of plaintiff''s land and that defendant No. 1/appellant had to go to said public road only through the suit property of the plaintiff/respondent No. 1. The defendant No. 1/appellant claimed said pathway to be curved one having a width of at least six feet. However, learned Courts below were of the opinion that the pathway through another''s land should be through the straightest possible way. According to learned Courts below if the straight road is followed then said pathway which can he permitted to be used by the defendant No. 1/appellant as an easement of necessity measures about four feet in width having 43 feet in length. When a person wants to use a pathway through another''s land as an easement of necessity then he should restrict his right only to the shortest possible area. It appears from the judgment of learned Courts below that the pathway of 43 feet in length and four feet in width running straight from defendant No. 1/appellant''s house to the public pathway lying to the south of the suit property of plaintiff/respondent No. 1 and adjacent east to the land of proforma respondent No. 2 was declared to be defendant No. 1/appellant''s pathway. Defendant No. 1/appellant was granted the use of said pathway through the suit property of plaintiff respondent No. 1 as an easement of necessity. As per plaint the plaintiff/respondent No. 1 was in possession of 2 decimals of land though as per his purchase deeds he purchased 2� decimals of land. If that be the factual position then the plaintiff/respondent No. 1 was not entitled to a decree of declaring his right over 2� decimals of land. His right, title and possession can only be restricted to the suit property measuring 2 decimals of land with a rider that the defendant No. 1/appellant was entitled to use the pathway measuring 43 feet in length and 4 feet in breadth running through the western border of the suit property as an easement of necessity. The defendant No. 1/appellant was also to be restrained by an order of permanent injunction from interfering with peaceful possession of the plaintiff in the rest portion of the suit property.

The judgments and decrees of learned Courts below are modified only to that extent.

As a result, the appeal is allowed in part only to the extent as stated above. Decree be drawn up accordingly.

However, I pass no order as to costs. Urgent photostat certified copy of this order be supplied to the learned counsels of the parties, if applied for.