Case No: Civil Revision No. 1092 of 1991
Judge: Md. Abdur Rashid ,
Court: High Court Division,,
Advocate: Haroon Ar Rashid,,
Citation: 59 DLR (2007) 175
Case Year: 2007
Appellant: Kadam Ali Bhuiyan (Md)
Respondent: Begum Saheda Nur
Subject: Property Law,
Delivery Date: 2007-02-15
59 DLR (2007) 175
High Court Division
(Civil Revisional Jurisdiction)
Md. Abdur Rashid J
Kadam Ali Bhuiyan (Md)
Begum Saheda Nur
February 15, 2007.
Md. Haroon Ar Rashid, Advocates—For the Petitioners.
Not represented— the Opposite Parties.
Civil Revision No. 1092 of 1991.
2. On 26-6-89 the plaintiff instituted a suit. being Title Suit No. 119 of 1989 against the opposite parties for a decree of declaration of easement right over the pathway fully described with a sketch map in the schedule 'Kha' to the plaint and also for perpetual injunction for restraining defendant Nos. 2 to 5 from raising any wall and obstructing in any way the pathway. The suit was ultimately renumbered as aforesaid Title Suit No. 38 of 1991.
3. Plaint case, in short, is that the plaintiff purchased 4 decimals of land, which is fully described in schedule 'Ka' by a registered deed of sale dated 9-3-1963 with a pathway from the suit land and also for drainage. The pathway was about six feet wide and clearly demarcated with a sketch map marked by letter, 'ট', 'ঠ' এবং ড connecting the north and south road shown in schedule 'Kha'. The plaintiff used the pathway for more than 25 years and acquired an easement over the pathway. Defendant Nos. 2 and 3 are children of defendant No. 1 who constructed a building in 1987 touching the pathway with a cornice projecting up to three feet over the pathway.
4. Defendant No. 4 by raising a wall about three feet from the west and thereby practically closed the half of the northern side of the pathway. Defendant No. 5 closed fully the pathway from the south by raising bamboo fencing in June 20, 1989. Result being, no pathway was left for the plaintiff for egress and ingress into his land. Unless the obstructions raised by the defendant Nos. 2 to 5 be removed, the plaintiff would have no way to reach the north and south roads from his land. Hence, the suit.
5. Defendant Nos. 1 and 2 jointly and defendant No. 5 separately contested the suit by filing two written statements.
6. Case of the defendants 1 and 2, in short, was that the suit as framed was not maintainable and also bad for defect of parties. They admitted that the plaintiff purchased 4 decimal of land from defendant No. 1 but denied that in the deed any provision was kept for egress and ingress from the suit land. There was however, mention of a road for drainage of water by the west in the deed. They also denied that the plaintiff acquired any right of easement over said pathway along with other people. They also denied defendant No. 5 closed down the pathway by bamboo fencing.
7. Defendant No. 5, on the other hand, contended that the suit was bad far defect of parties and hit by provision of sections 42 and 46 of the Specific Relief Act After purchase of 4 decimals of land from defendant No. 1 on 1-3-190,the plaintiff raised two tin-roof huts and possessed. Defendant No. 5, however, admitted that there was provision for use of pathway and drainage of water in the deed of the plaintiff as was shown by pen sketch marked by letter 'ট', 'ঠ' এবং ড but leading to the north but denied that there was any pathway leading to the south.
8. His further case was that in 1977 when he purchased the land the plaintiff did not use of any pathway toward the south. He further contended that he gave the fencing about 12 years back. He denied that the plaintiff ever acquired any easement over the pathway.
9. Upon the pleadings, the trial Court settled number of issues including the one whether the plaintiff acquired any right of easement over the pathway.
10. In support of his case, the plaintiff examined three witnesses including him while defendant No. 5 examined one as his caretaker. Defendant Nos. 1 and 2, however, ultimately did not examine any witness. The documents adduced by the plaintiff were marked Exhibits 1 to 3. But no paper was produced on behalf of the defendants.
11. The trial Court found the existence of the pathway in the deed Exhibit 1. There was clear recital of six feet wide pathway leading to the main road marked by letter by sketch map. It, accordingly, held that the plaintiff was entitled to use the pathway marked by letter ''ট', 'ঠ' এবং ড in the sketch map in schedule 'Kha' and defendant Nos. 1 to 5 obstructed the plaintiff from using the said pathway. Upon such view, the trial Court decreed the suit as prayed for.
12. On appeal therefrom at the instance of defendant No. 5, the appellate Court however found the plaintiff was not entitled to get a decree after two fears of closure of the pathway in 1987 by the defendants and that the pathway was not sufficiently indentified.
13. Mr. Harun-ar-Rashid, learned Advocate took me through the record and submits that existence of the pathway would be found in Exhibit 1 and was not denied in the written statements of the defendants and proved by oral evidence of the plaintiff's witnesses and the court of appeal below without considering those evidence most illegally refused to decree the suit on the assumption that the pathway was not sufficiently identifiable.
14. He also submitted that even in the deed of defendant No. 5 existence of the pathway was stated and on the prayer of the plaintiff for admission of a copy of said deed of defendant No. 5 was allowed by this Division in 15 DLR 432 and the appellate Court was directed by said decision to consider said evidence at the time of hearing of the appeal but the Court of appeal below without examining the deed of defendant No. 5 erroneously found that the existence of pathway was not identifiable for want of particulars.
15. Only issue that is facing me is, as to whether the court of appeal below was justified in the facts and circumstances of the case and the evidence on record in dismissing the suit.
16. I have examined the record.
17. The suit was instituted for declaration of a right of pathway by way of easement and also for removal of obstructions put on the pathway and also for perpetual injunction.
18. Case of the plaintiff is, that in 1963 he purchased 4 decimals of land described in schedule 'Ka' from defendant No. 1. In the deed, defendant No. 1 clearly agreed to allow the plaintiff to use the pathway running by the west of the suit land and leading north to the main road and also for drainage. In the deed of defendant No. 5 dated 6-5-1977 there was clear mention of existence of 6 feet wide pathway leading south to another main road. Plaintiff used the said pathway marked by letter, 'ট', 'ঠ' এবং ড and a pen sketch map of schedule 'Kha' since purchase.
19. PW 2, a retired government employee deposed that he used the road for forty years. PW 3 an engineer, also deposed that he used the road since 1952. Upon such evidence, the trial Court came to a clear finding that the plaintiff acquired a right of easement over the pathway for egress and ingress for more than 20 years and accordingly, decreed the suit as prayed for.
20. But the Court of appeal below, without considering any of the evidence oral and documentary on record, just found that the road was not described with reference to the plot no, area, etc. and could not be identifiable. Upon such view, the court of appeal below took the wrong view that after closure of such pathway, the plaintiff could not get a decree as prayed for.
21. Section 15 provides for acquisition of right by prescription namely,
"and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years."
22. The plaintiff has proved beyond all sheds of doubts that he used the pathway as marked by letter, 'ট', 'ঠ' এবং ড connecting to main roads which has gone by the north and south of the suit land peaceably, openly and without interruption with other people for more than twenty years. The plaintiff therefore must be held to have acquired a valid right of use of the pathway for egress and ingress by easement.
23. It may also be noted that suit plot No. 12 comprises of 33 decimals of land and the plaintiff has clearly demarcated the pathway over the background of said 33 decimals of land with a pen sketch in schedule "Kha". The Court of appeal below was wrong in digging out something to deny the existence of the pathway. The defendant No. 5 did not dare to come to the Court and take an oath to deny existence of the pathway. He rather somehow, admitted existence of the pathway.
24. Law is very clear, if a pathway was used for egress and ingress from his (her) land by anybody for more than twenty years as an easement nobody or authority is entitled to close such pathway. In case of closure of such pathway, the plaintiff would be entitled to get such obstructions removed.
25. For aforesaid reasons, the judgment and decree of the court of appeal below, which reversed those of the trial Court cannot be sustained in law, which no doubt resulted in error occasioning failure of justice.
26. In the result, the Rule is made absolute without however any order as to cost. The impugned judgment and decree of the court of appeal below are set aside and those of the trial Court are restored. The suit is decreed as prayed for.
Order of status quo granted earlier at the time of issue of the Rule on 20-4-1999 is hereby recalled and vacated.
Send down the records at once.