SURENDRA BEHERA vs BANSHIDHAR BEHERA AND OTHERS

Dr. A.K. Rath, J.

Plaintiff is the appellant in a suit for declaration of easementary right, permanent and mandatory injunction.

The parties have a common ancestor. Though the family pedigree assumes less importance in the frame work of the suit, still it need be mentioned

for better appreciation of facts. The following genealogy would show the relationship of the parties.

The case of the plaintiff was that the suit land appertaining C.S. Khata No.75, plot no.169 corresponds to M.S. khata no.17, plot no.280. Plot no.168

situated to its eastern side was recorded in the name of his grandfather, Baidhar Behera. Out of the said plot, the northern portion was in possession

of Balakrushna and Jagmohan, who belong to the branch of Khetramohan. The southern portion of plot no.168 is being possessed by him and his

brother Madhusudan. Madhusudan left the village and stayed at village-Malada. Few years back, Balakrushna and Jagmohan sold their share, i.e., the

northern portion of C.S. plot no.168 to one Krushna Ch. Panda. Again one year thereafter Balakrushna repurchased the same in the name of his wife

Kamalabala, defendant no.2. C.S. plot nos.169 and 169/475 were recorded in the name of the grandfather of defendant no.1. The father of defendant

no.1 inherited the same in due course of time. On 2.4.70, the plaintiff, defendant nos.1 and 2 purchased and sold their lands between themselves.

Defendant no.2 sold Ac.0.001/2 dec. to the plaintiff from out of her share in plot no.168 and Ac.0.03 dec. from the same plot to the father of

defendant no.1, Chema Behera. After purchase, the plaintiff became the owner of Ac.0.04 dec. in the southern side of C.S. plot no.168. The father of

defendant no.1 became the owner of northern side of C.S. plot no.168 measuring Ac.0.03 dec. C.S. plot no.169 situated in between the public road

and C.S. plot no.168. The house of the plaintiff is situated on the southern side of C.S. plot no.168. In order to go to the public road, he used a passage

measuring 10 links x 75 links situated on the southern side of C.S. plot no.169. According to the plaintiff, they are using the said passage to the public

road from their grandfather’s period and there is no other alternative road to go to the public road. Defendant no.1, who is the recorded owner of

C.S. plot no.169, used it as his backyard and the passage is situated just at the end portion in the southern side of the plot. But on 22.2.88 he

constructed a house by encroaching a portion from the aforesaid passage, as a result of which, the width of the passage was reduced to about one

cubit. Previously its width was approximately 4 to 5 cubits. Therefore, they were facing much inconvenience to go to the public road. With this factual

scenario, he instituted the suit seeking the reliefs mentioned supra.

Defendant no.1 filed written statement denying the assertions made in the plaint. The specific case of the defendant no.1 was that the plaintiff was

earlier going to the public road through some other plots situated in the eastern side of C.S. plot no.168 which belonged to him. But now he is going to

the public road through a passage situated in the southern side of C.S. plot no.169/475 which has been recorded in the name of Kamalabala, defendant

no.2. There is no passage in the southern side of his plot no.169 and the plaintiff has falsely claimed a portion from his land to use the same as a road.

Since he is using the southern side of plot no.169/475 as a road, there is absolutely no reason for him to claim any portion from plot no.169. In the

MSROR, C.S. plot no.169 has been correctly recorded as plot no.280 having area Ac.0.05 dec. He refuted the allegation of the plaintiff that on

22.2.88 he constructed a new house over a portion of the imaginary road. His old house was situated at that place and he only repaired the same on

that day. Defendant nos.2 and 3 had been set exparte.

On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary, to substantiate their

respective cases. Learned trial court came to hold that the oral evidence adduced by the plaintiff is more credible than that adduced by the defendant

no.1. Accordingly, it held that the plaintiff has prescribed his right of passage and decreed the suit. Felt aggrieved, defendant no.1 filed T.A. No.19 of

1995 before the learned District Judge, Balasore-Bhadrak, Balasore. Learned appellate court held that no contemporary documents have been filed by

the plaintiff in support of his case. The record of rights and other documents do not contain any entry about right of passage of the plaintiff over plot

no.169. Oral evidence adduced by the defendant no.1 is more credible than that adduced by the plaintiff. Held so, it allowed the appeal.

The second appeal was admitted on the following substantial questions of law.

“1. Whether there is right of easement over the suit land ?

Whether the impugned judgment of the lower appellate court is bad in law and is vitiated due to error of record and non-consideration of evidence

of P.Ws. and D.Ws.?â€​

Heard Mr. Budhiram Das, learned counsel, on behalf of Mr. N.C. Pati, learned counsel for the appellant and Mr.A.K. Mohakud, learned counsel

for the respondents.

Mr. Das, learned counsel for the appellant, submitted that the finding of learned appellate court that P.W.2 is unable to say the plot number over

which the alleged passage exists is an error of record. Learned appellate court had not considered the evidence of P.Ws.1, 3 and 4. Non-consideration

of material evidence vitiates the judgment. No plausible ground has been assigned to discard the evidence of the plaintiff’s witnesses. Learned

appellate court has not considered Exts.7 and 8 which were marked without objection. Non-mention of passage in the settlement ROR is not a ground

to dismiss the suit for declaration of easementary right.

Per contra, Mr. Mahakud, learned counsel for the respondents, submitted that in none of the documents, the suit land has been described as a road.

The commissioner was not examined. Thus the report should not have been accepted. Learned appellate court took into consideration of the oral and

documentary evidence on record. There is no perversity in the finding of the court below.

The dispute pertains to the passage over plot no.169. Learned trial court held that merely because the road has not been shown in the map or ROR,

the same is per se not a ground to disbelieve the case of the plaintiff. On scrutiny of the evidence on record, it came to hold that the witness for the

plaintiff deposed that a road existed on the southern side of C.S. plot no.169. But the witness for the defendant no.1 denied the same. There is no

pleading that the plaintiff was using the embankment of Krushna Mohan Behera and the plots of some other persons to go to the public road. The plot

of defendant no.1 is situated in between the public road and the plot over which the house of the plaintiff exists. Since the time of his grandfather for

more than 20 years, the plaintiff has the right of easement. The plaintiff has established his right by way of easement. Held so, it decreed the suit.

Learned appellate court discard the testimony of P.Ws.1 and 2 on jejune grounds. The testimony of P.W.1 was rejected on the ground that he made a

bald statement that a portion of plot no.169 having width of 10 cubits has been used as a road since his grandfather’s time. P.W.2 was the

commissioner deputed by the court under Order 39 Rule 7 C.P.C. His statement was not at all discussed. The deposition of P.W.3, co-villager, was

discarded on the ground that he is a court bird. There is no material on record to come to a definite conclusion.

Learned appellate court upset the findings of learned trial court on untenable and unsupportable ground. As held above, learned trial court scanned

the evidence on record and pleadings came to held that the plaintiff has established his right by way of easement. The substantial questions of law are

answered accordingly.

In the wake of aforesaid, the impugned judgment is set aside. The appeal is allowed. Consequently, the suit is decreed. The parties shall bear the

cost throughout.