Decided on July 17,2018

Kshitish Ranjan Paul And Anr Appellant
Digendra Das And 6 Ors Respondents


Mir Alfaz Ali, J. - (1.) This second appeal is by the defendants against the judgment and decree dated 28-06-2013 passed by the learned Civil Judge, Hailakandi in Title Appeal No. 34/2012, whereby the learned Civil Judge concurring with the findings of the learned Munsiff, dismissed the appeal filed by the defendant and upheld the judgment and decree dated 31-08-2012 passed by learned Munsiff in T.S. 56/2006.
(2.) The respondent, as plaintiff, instituted T.S. No. 56/2006 for declaration of his right to use the suit path, which was the subject matter of the suit and for permanent injunction. The case of the plaintiff was that he purchased the land measuring 4 kathas 8 chataks covered by Dag No. 2085 of 2nd R.S. Patta No. 3, vide registered sale deed No. 4467 dated 21-12-1994. In the said sale deed, the vendor allowed the plaintiffs to use a 5 feet path running from east to west connecting the PWD Road, from the south west corner of the plaintiffs' land. Plaintiffs had been using the said path. In the meantime, the defendant No.8 got a decree in T.S. No. 6/83 between the defendant No.8 and other plaintiffs. The said suit (T.S. No. 6/83) was decreed in favour of the defendant No. 8 being co-sharer to the extent of his share in the suit land and the said decree in T.S. No. 6/1983 was put into execution. While executing the decree passed in T.S. No. 6/1983, a portion of the plaintiffs' land including the path, which, the vendor of the plaintiffs allowed for use of the plaintiffs, was given to the defendant No. 8. Thereafter, the vendor of the plaintiffs by executing another deed transferred 4 chataks of land in order to compensate the plaintiff and also allowed the plaintiff to use a path over the land of the vendor of the plaintiffs, running from south-west corner of the plaintiffs' purchased land, to the PWD road and the plaintiffs had been using the path without interference from any quarter. The defendant No. 1 on behalf of Radha Seva Ashram purchased a plot of land measuring 4 kathas out of the dag No. 2085 subsequently from the defendant Nos. 3 and 5, who were also the daughters of Jotindra Mohan Dey and the said land purchased by the defendant No. 1 for Radha Seva Ashram was on the northern side of the 5 feet path, which was being used by the plaintiffs. The defendant No. 1 constructed the Mandir abutting the boundary of the suit path without leaving any margin and extended the projection of the building over the path on the southern side and thereby created obstruction over the path, which was being used by the plaintiffs. The defendant also constructed a permanent gate on the path of the plaintiffs. Hence the plaintiffs filed the suit for declaration of right and title and injunction as indicated above.
(3.) The pleaded case of the defendants was that the vendor of the plaintiffs did not have any saleable right over the suit land in the year 2003, and as such, the sale deed Ext. 2 was incapable of conveying any right or title to the plaintiffs. Further case of the defendants was that the path allowed to be used by the plaintiffs by his vendor was already in occupation of defendant No. 8 by virtue of decree passed in T.S. No 6/83. The defendant purchased 4 katha of land on 01-11-2002 by sale deed No. 3024 from the co-sharer of the land with a specific boundary including a 5 feet path and the vendor of the defendants delivered the possession of the land purchased by sale deed No. 3024 along with the 5 feet path on the southern side of the land and the plaintiffs did not have any right or title over the said path running from east to west through the southern boundary of the defendants' land.;

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