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IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Supratim Bhattacharya
S.A. 197 of 2018
Sri Srihari Pradhan & Ors.
-vs-
Sri Sripati Pradhan & Ors.
For the Appellants : Mr. Rwitendra Banerjee
Mr. Pappu Adhikari
Mr. A. Roy Chowdhury
For the Respondents : Mr. Biswajit Sau
Mr. Sohom Sau Heard On : 22.06.2023 Judgement Delivered On : 21.09.2023 Supratim Bhattacharya, J.:
1. The instant appeal has been preferred by the appellants/plaintiffs being aggrieved by and dissatisfied with the Judgment and decree passed in Title Appeal No. 03 of 2013 dated 17.02.2018 by the Ld. Civil Judge, Sr. Divn. 2nd Court Contai Purba Midnapore. 2
2. Through the said Judgement the First Appellate Court has been pleased to allow on contest the said Appeal by setting aside the judgement and decree passed by the Ld. Civil Judge Jr. Divn. 2nd Court, Contai, Purba Midnapore passed in Title Suit No. 202 of 2008 dated 30.07.2010.
3. Before the Ld. Trial Court the plaintiffs had prayed for a decree to the effect that the plaintiffs have right and possession in respect of 0.51 decimal in dag No. 399 and 0.20 decimal in dag No. 400 lying in khatian No. 89 within mouja Gobindachak, P.S. Bhupatinagar in the district of Purba Midnapore and had also prayed for decree declaring that the original defendant namely Sripati Pradhan does not have any easement right of drainage or any other right in the aforementioned properties.
4. The Ld. Trial Court decreed the suit on contest against the defendant No.1 and ex parte against the rest.
5. Being aggrieved by the Judgment passed by the Ld. Trial Court the defendant Sripati Pradhan preferred the First Appeal. Through the impugned Judgment the First Appellate Court has been pleased to set aside the right, title and interest of the appellants/plaintiffs over the suit property which was decreed by the Trial Court.
6. The appellants in the instant second appeal were the respondents in the first appeal and were the plaintiffs in the title suit while the 3 respondents in the instant appeal were the appellants in the first appeal and were the defendants in the title suit.
7. At the time of admission of the instant second appeal the following substantial questions of law have been framed: I) Whether the Court of appeal below erred in law in holding that the plaintiffs had failed to prove their right, title and interest over the scheduled property and accordingly, reversed the decree passed by the Trial Court ? II) Whether the Court of appeal below failed to consider the material evidence on record wherefrom it is evident that the defendants themselves admitted the right, title and interest of the plaintiffs and, accordingly, the Court of appeal below came to a perverse finding that the plaintiffs had failed to prove their right, title and interest over the scheduled property ?
8. The Ld. Counsel appearing on behalf of the appellants has submitted the following:
i) That the appellants/plaintiffs have the right, title and interest in respect of the suit property and the respondent/defendant No.1 namely Sripati Pradhan does not have any right of easement with regards to the drain passing through the suit property.
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ii) The Ld. Counsel has further submitted that the respondents/defendants have not challenged the title of the appellants/plaintiffs. He has further submitted that on the basis of the said admission made by the respondent/defendant no.1 as to the plaintiffs title the suit was decreed.
iii) The Ld. Counsel has further submitted that the Ld. First Appellate Court reversed the said decree passed by the Trial Court on an erroneous finding that the appellants/plaintiffs have failed to prove their title in the suit property.
iv) The Ld. Counsel has also submitted that the appellants/plaintiffs and the respondent/defendant No.1 are brothers. He has further submitted that Amulyadhan Pradhan was the father of the appellants and the respondent No.1.
v) Ld. Counsel has further submitted that the said Amulyadhan was the owner of the suit land (plot No. 399) and his name is recorded in the RS record if rights. He has further submitted that Amulyadhan Pradhan was also the owner to the extent of 10 decimals of land in respect of the plot No.400 and his name is duly recorded in the RS record of rights.
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vi) He has further submitted that Amulyadhan Pradhan transferred his title in favour of the appellants/plaintiffs by dint of three registered deeds dated 22.09.1975, 07.05.1980 and 25.01.1983.
vii) He has further submitted that through a registered deed of sale dated 26.04.1966 the said Amulyadhan Pradhan has transferred 10 decimals of land in respect of plot No. 400 to the plaintiff no. 3 namely Niranjan Mondal. The Ld. Counsel has further submitted that the defendant No.1 is the owner of the plot No.384 and since time immemorial excess water flows towards the northern direction through the plots No. 383, 381 and 376 which plots are not the suit property.
viii) Ld. Counsel has further submitted that the respondent No.1/defendant No.1 has pleaded that he has been exercising easement by prescription and not by necessity.
ix) Ld. Counsel has further submitted that the primary issue is that whether the respondent No.1/defendant No.1 has been exercising his prescriptive right of easement over the plot No.399 uninterruptedly.
x) Ld. Counsel has also submitted that the Indian Easement Act, 1882 does not apply in the State of West Bengal however the principles of equity and good conscience do apply.
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xi) The Ld. Counsel has further submitted that the moment the defendant pleaded that he exercises right of easement, the appellant/plaintiff is not required to prove his title to the property.
xii) Ld. Counsel has relied upon the following Judgments reported in
a) (2008) 17 SCC 491, wherein the Apex Court has discussed in details about the difference between easement by prescription and easement by necessity.
b) AIR 1967 Cal 10, wherein this Hon'ble Court has laid down that presumption created in the record of rights is rebuttable and it is the civil Court who can pronounce the judgment on its correctness.
Relying upon the said judgments the Ld. Counsel has prayed for setting aside the Judgment passed by the First Appellate Court and affirming the Judgment of the Trial Court
9. The Ld. Counsel appearing on behalf of the respondents /defendants has during his submission stressed upon the following points:
i) That the appellants/plaintiffs have prayed for declaration of right, title and interest in respect of the suit property claiming themselves as the owners of the suit property but no title deed or any record of right has been produced by the 7 appellants/plaintiffs to prove the said ownership either of themselves or of Amulyadhan Pradhan, their vendor on the basis of which they are claiming so.
ii) Ld. Counsel has further submitted that the appellants/plaintiffs No.1 and 2 purchased the plot No. 399 from Amulyadhan Pradhan by deed No. 486 of 1993 being Exhibit- 3 which is measuring 0.16 decimals of land out of 0.51 decimals of land.
iii) He has further submitted that the appellant/plaintiff No.2 purchased 0.7½ decimal of land from Amulyadhan Pradhan through deed No.2712 of 1980. He has further submitted that the appellant /plaintiff No. 2 purchased land measuring 0.10 decimal within the plot No.399 through registered deed of sale bearing No. 13349 of 1975.
iv) Ld. Counsel has further submitted that the total land purchased by the plaintiffs No. 1 and 2 in dag No. 399 is 0.16 decimal + 0.7½ decimal +0.10 decimal which altogether is 0.33 ½ decimal but in the Ka schedule, the total area of land in dag No. 399 is 0.51 decimal. So 0.17½ decimal of land within dag No. 399 does not belong to the appellants/plaintiffs.
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v) He has further submitted that as such the ownership of the plaintiff No. 1 and 2 in respect of Dag No. 399 measuring 0.51 decimal has not been proved.
vi) Ld. Counsel has further submitted that the drain within dag No.399 through which water flows from the pond situated at plot no. 384 to the pond situated in plot No. 400 is beyond the area of ownership of the appellants /plaintiffs No.1 and 2 as such the plaintiffs are not entitled to the declaration of right title and interest.
vii) The Ld. Counsel has further submitted that in respect of the area of 20 decimals within plot No. 400 which is mentioned in the Ka schedule of the plaint is said to be originally owned by Amulyadhan Pradhan but in that respect neither any title deed nor any record of right in favour of Amulyadhan has been produced.
viii) The Ld. Counsel has further submitted that in respect of plot No. 400 only 0.10 decimals of land out of 0.20 decimals has been transferred to the father of the appellant/plaintiff No. 3 namely Nandalal Mondal as such no right, title or interest in respect of the entire 0.20 decimals of land can be granted.
ix) Ld. Counsel has further submitted that the drain through which water flows from the Plot No. 384 to the plot No. 400 9 is situated within the area in respect of which the appellants/plaintiffs do not have any title.
x) Ld. Counsel has also submitted that in the LR record of rights, in respect of Dag No. 384 that is Doba measuring about 0.04 decimals, it is mentioned that excess water flows through the plot No. 399 towards east and thereafter reaches plot No. 400.
xi) Ld. Counsel has further submitted that the said drain (nala) will come under the purview of easement by necessity and not easement by prescription.
xii) The Ld. Counsel in support of his contentions has relied upon the following judgment:
(2014) 2 SCC 269, wherein it has been stated that in a suit for declaration of right title and interest burden of proof lies on the plaintiff to prove the case. It has also been stated that the record of rights do not confer title.
Banking upon the aforesaid submission the Ld. Counsel has prayed for rejection of the instant appeal.
10. The plaintiffs have prayed for declaration that they are the absolute owners of 0.51 decimals of the property situated in the plot No.399 and 0.20 decimals of property situated in the plot No.400 which have been mentioned in the schedule of the plaint. 10
11. This Court first deals with the fact as to how much the appellants/plaintiffs have been able to prove as regards to ownership of the properties which the appellants have claimed to be belonging to them and on the basis of which the consequential reliefs have been sought for.
From the exhibit-3, that is the deed of sale dated 25.01.1983 being No. 486 for the year 1983, it reveals that Srihari Pradhan, the appellant No.1/plaintiff No.1 has purchased 0.16 decimal out of 0.51 decimal of the plot No.399 within Mouja-Gobindachak, P.S.- Bhupatinagar, District Purba Midnapore from Amulyadhan Pradhan. From the exhibit 4 that is a deed of sale dated 07.05.1980, being recorded in Book No.1, Volume No.46, pages 48 to 50 being No. 2718 of 1980 it transpires that Smt. Sandhyarani Pradhan the appellant No.2/plaintiff No.2 purchased 0.7½ decimal out of 0.51 decimal of the said property in respect of dag No.399, khatian No.89, Mouja- Gobindochak, P.S.-Bhupatinagar wihtin the District Purba Midnapore from Amulyadhan Pradhan.
From the exhibit 5 that is another deed of sale dated 22.09.1975 Being recorded in Book No. 1, Volume No. 176, pages 104 to 106, Being No. 13349 for the year 1975 it reflects that Sandhyarani Pradhan the appellant No.2/plaintiff No.2 has purchased 0.10 decimal out of 0.51 decimal of the property situated 11 in Dag No. 399 within Mouja-Gobindochak, P.S.-Bhupatinagar wihtin the District Purba Midnapore from Amulyadhan Pradhan. Thus, from the aforesaid three exhibited documents that is three deeds of sale it transpires that in respect of Plot No.399 the plaintiffs have purchased 0.16 decimal + 0.7½ decimal + 0.10 decimal altogether 0.33½ decimal out of 0.51 decimal.
12. From the exhibit-6 that is another deed of sale dated 24.04.1966 recorded in Book No. 1, Volume No. 61, pages 67 to 69, Being No. 3894 for the year 1966, it transpires that Nandalal Mondal, father of Niranjan Mondal the appellant No. 3/plaintiff No.3 had purchased 0.10 decimal of the property out of 0.20 decimal in plot No. 400 within Mouja-Gobindochak, P.S.-Bhupatinagar, District-Purba Midnapore.
In the plaint the plaintiffs have stated that Amulyadhan Pradhan has sold his share in respect of plot No.400 through the aforementioned deed that is the deed No.3894 to the plaintiff No.3 that is Niranjan Mondal but the said deed which has been marked exhibit-6 reflects that through the said deed Nandalal Mondal the father of Niranjan Mondal had purchased 0.10 decimals of the plot No.400.
13. Thus, the appellants/plaintiffs are owners of 0.33½ decimal in respect of plot No.399 while they are the owners of 0.10 decimal in respect of plot No.400.
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14. In respect of the drain passing through the plot No.399, in the exhibit-1 that is record of right there is reflection that through the eastern and the n orthern side of the plot No.399 water from the plot No.384 flows and reaches plot No.400. Exhibit-B that is record of right reflects the passage of excess water from the plot No.384 to the plot No.400 through the eastern side of the plot No.399. The report of the Commissioner which has been marked exhibit-E also reflects that there is a drain some portion of which is filled with loose soil in the plot No.399. So the appellants/plaintiffs have failed to prove that through the drain passing through the eastern and the northern side of the plot No.399 water does not flow.
15. This Court reasserts the view of the Hon'ble Apex Court as laid down in the Paragraph 15 of the Judgment published in (2014) 2 SCC
269. Paragraph 15 reads as follows:
"15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff."
16. Thus, from the above discussion it transpires that some modification of the Judgment of the First Appellate Court is required, to the extent that the appellants are the owners of 0.33½ decimal in respect to plot No.399 and 0.10 decimal in respect of plot No.400. The appellants are not entitled to any order as regards to restraining the 13 flow of the excess water from the plot No.384 to the plot No. 400 through the northern and eastern side of the plot No. 399.
17. Thus, the Judgement of the First Appellate Court is modified to the aforementioned extent only.
18. Decree be drawn up accordingly and the LCR be sent to the Ld. Court.
Parties shall be entitled to act on the basis of the server copy of the judgment and order placed on the official website of the Court.
Urgent Xerox certified photo copies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Supratim Bhattacharya, J.)