Prafulla Kumar Nayak vs Sunamani Bewa and Others

B. Panigrahi, J.—The Plaintiff being undeterred by the dismissal of his suit as well as appeal, has filed this appeal.

In the suit, he has claimed that the disputed land is used as a passage to approach his Plot No. 73 from his Plot No. 79. As such an easement of necessity has been claimed in the suit. But it was wrongly recorded in the name of the Defendants, although the suit land is a portion of public road. Thus, he filed the suit for declaration of title and for permanent injunction against the Defendants from creating hindrance to use the suit land as a passage and also for correction of record of rights.

The Respondents on the other hand have, inter alia, stated in their written statement that Hal Settlement was carried in the year 1972 and Sabik Settlement was done in 1993. The entries in both the record of rights showed that the suit land was recorded in the name of their predecessors. There has been no cause of action whatsoever for filing the suit. Therefore, the trial Court as well as the appellate Court found that there has been no substance in the Plaintiffs plea to advance a claim of easementary right by prescription. There has been no evidence that they have been in enjoyment of the suit land for a continuous period of 20 years. From the evidence, it has been proved that Plot No. 73 which belongs to the Plaintiff adjoins the village road in Plot No. 81. Therefore, their plea that the suit land is used as passage to approach the public road stood belied. Similarly from 1979, there has been an access to go to the road in Plot No. 81. As there is ample evidence to hold that the Plaintiff failed to prove the easement of necessity by both the Courts below, there appears to have no occasion for this Court to interfere with the concurrent findings.

Mr. Kar has contended that both the Courts below have factually erred in holding that there is a passage in Plot No. 77. Further it has also been urged that Respondents 1 to 5 are using Plot No. 81 as the public passage. Since the requirement of easement of necessity has not been proved by the Plaintiff, therefore, the decisions cited by Mr. Kar have hardly any application to the present facts. Since all these questions involved factual appreciation of evidence and there has been no palpable wrong appreciation of law, there is hardly any occasion to interfere in this appeal.

Accordingly, the appeal fails and the same is dismissed without costs and the findings of both the Courts below are hereby confirmed.