Government of Bangladesh, represented by the Deputy Commissioner, Sylhet Vs. Abdul Aziz and others

Appellate Division Cases

(Civil)

PARTIES

Government of Bangladesh, represented by the Deputy Commissioner, Sylhet …………………Petitioner.

-Vs-

Abdul Aziz and others…………. Respondents.

JUSTICES

Md. Ruhul Amin J

Md.Tafazzul Islam J

Judgment Dated : 9th April 2006

The Code of Civil Procedure, Section 115(1)

Suit for declaration of their easement right over the land described in the second schedule of the plaintiff and also for permanent injunction restraining the defendant Nos. 1-4 from interfering with right of the plaintiffs as well as the Co-villagers to use the said land as pathway stating, inter alia, that the plaintiffs as well as the people of villages Gualan, Kadimpura …………………..(2)

That admittedly the suit pathway is being used by the general public of the locality and there is no other alternative way for their passage to Sylhet Tamabil Road and haor and that the evidence of D.W.I disclosed that the suit pathway was demarcated by a row of trees and irrigation channel of the Seed Multiplication Farm and there were also two pucca culverts on the pathway which creates the impression that for the convenience of the movement of the general public those culverts had been constructed and D.W.I also did not allege that B.A.D.C. had constructed those culverts and so the pathway is not private pathway of B.A.D.C and that the defendants were not also able to prove by any documentary evidence that the suit pathway had ever been acquired by the Government for B.A.D.C and so the defendants have no right to disturb the easement right being enjoyed by the plaintiffs and the people of the nearby villages over the suit pathway for over statutory period of limitation ………………….(3)

Evidence on record both oral and documentary, came to the definite finding that the suit pathway is used by the plaintiffs and the people of the nearby villages for long time and the courts below further found that the defendant No. 5 petitioner failed to produce any evidence in support of their claim that the suit pathway was acquired of B.A.D.C………………….. (5)

The Petition is dismissed…………………….. (7)

A.H.M Mushfiqur Rahman, Deputy-Attorney General, instructed by B. Hossain, Advocate-on-Record ………………….For the petitioner.

Respondents……………………… Not represented

Civil Petition For Leave To Appeal No.620 of 2004

(From the judgment and order dated 15th July, 2002 passed by the High Court Division in Civil Order No. 7110 of 2002).

JUDGMENT

Md. Tafazzul Islam J : This petition for leave to appeal is directed against the judgment and order dated 15.7.2002 passed by the High Court Division in Civil Order No. 7110 of 2002 summarily rejecting the application filed by the petitioner under section 115(1) of the Code of Civil Procedure impugning the judgment and decree dated 12.9.2000 passed by the learned Subordinate Judge (now Joint District Judge), First Court, Sylhet in Title Appeal No. 203 of 1988 affirming those of dated 31.12.85 passed by the learned Munsif, (now Assistant Judge), Additional Court Sylhet in Title Suit No. 93 of 1985 decreeing the suit.

2. The respondents filed the above suit for declaration of their easement right over the land described in the second schedule of the plaintiff and also for permanent injunction restraining the defendant Nos. 1-4 from interfering with right of the plaintiffs as well as the Co-villagers to use the said land as pathway stating, inter alia, that the plaintiffs as well as the people of villages Gualan, Kadimpura. Isampur, Major tilla, Tilagarh, Shaplabagh, Kallagoan and Bhanapara had been using the pathway comprising of Dag Nos. 457, 578 and 579 (being recorded in the last survey and settlement operation) for over 100 years as their only pathway for going to and coming from Sylhet Tamabil Road and the people of said villages have been using the same pathway openly, continuously and uninterruptedly without permission from anybody; when the government decided to acquire certain lands including the land described in the 1st schedule of the plaint for B.A.D.C to establish a Seed Multiplication Farm in the year 1953-54 the people of the aforesaid villages raised objection to the same and then the competent authority of B.A.D.C ensured them to provide alternative road and on that condition the government acquired the 1 st scheduled pathway along with other lands situated in Mouza Debpur and Bohor; after acquisition of the 1st schedule land the people of the aforesaid villages constructed a new pathway over Dag No. 277 of Mouza Bohor from Sylhet Tamabil

Road upto Dag No. 328, as described in 2nd scheduled land, with a breadth of 15 feet demarcating the boundary of the Seed Multiplicatmg Farm with pillers for enabling the plaintiffs as well as the people of the said villages for going to their vast paddy fields and brick fields and to carry paddy and bricks from the paddy field and brick fields by trucks; then on the aforesaid pathway construction of road had been undertaken by the local authority under Food For Works Programme and bridges were constructed and the plaintiffs also erected two culverts at their own expenses of Tk. 30,000/-; the plaintiffshave brick fields located at Mouza Bohor and government sanctioned loans for those brick fileds; on 06.12.80 the defendants stooped the trucks of the plaintiffs carrying bricks and other materials and demanded payment of Tk. 5,000/ and on refusal of payment, the defendants threatened to block the road and hence the suit.

The Government of Bangladesh, the defendants No.5, contested the suit by filing a written statement contending, inter alia, that the suit land is a private pathway of B.A.D.C. which is exclusively used for the purpose of the Seed Multiplication Farm of B.A.D.c; the said pathway is a kutcha pathway which runs by the eastern boundary of the above farm on which the farm installed power pumps for supplying water to the paddy fields of the farm comprising of 45 acres of land and the plaintiffs have no right, title and interest over the same and if a decree is passed as prayed for it would affect the interest of Government.

3. The learned Munsif (now Assistant Judge), having found that the plaintiffs were able to prove their own easement right as well as the easement right of the people of the nearby villages over the pathway situated on second schedule of the plaint, decreed the suit. The defendant No.5 then filed Title Appeal No. 203 of 1988 and the lower appellate-court, having found that admittedly the suit pathway is being used by the general public of the locality and there is no other alternative way for their passage to Sylhet Tamabil

Road and haor and that the evidence of D.W. 1 disclosed that the suit pathway was demarcated by a row of trees and irrigation channel of the Seed Multiplication Farm and there were also two pucca culverts on the pathway which creates the impression that for the convenience of the movement of the general public those culverts had been constructed and D.W.I also did not allege that B.A.D.C. had constructed those culverts and so the pathway is not private pathway of B.A.D.C and that the defendants were not also able to prove by any documentary evidence that the suit pathway had ever been acquired by the Government for B.A.D.C and so the defendants have no right to disturb the easement right being enjoyed by the plaintiffs and the people of the nearby villages over the suit pathway for over statutory period of limitation, dismissed the appeal. The defendant No. 5 then moved the High Court Division but the High Court Division dismissed the revisional application summarily.

4. The learned counsel for the petitioner submits that the High Court Division erred in law in summarily rejecting the revisional application without discussing and considering the case of the petitioner.

5. As it appears the High Court Division condoned the delay of 262 days in filing the above revisional application but summarily rejected the revisional application on the grounds that both the courts below, on consideration of the evidence on record both oral and documentary, came to the definite finding that the suit pathway is used by the plaintiffs and the people of the nearby villages for long time and the courts below further found that the defendant No. 5 petitioner failed to produce any evidence in support of their claim that the suit pathway was acquired of B.A.D.C.

6. We are of the view that the High Court Division on proper consideration of the materials on record dismissed the revisional application summarily and there is no cogent reason to interfere with the judgment sought to be appealed against.

7. The petition is dismissed.

Source : V ADC (2008), 301

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