Calcutta High Court (Appellete Side)

Sri Soumen Chowdhury & Ors vs Sri Sushil Kumar Sharma & Ors on 3 February, 2021

S/L 1
03.02.2021

GB C.O. 122 of 2021

Sri Soumen Chowdhury & Ors.

Vs.

Sri Sushil Kumar Sharma & Ors.

(Through Video Conference)

Mr. Ajit Kumar Chaubey, Mr. Noorul Islam.

... for the Petitioners.

Mr. Pinank Mitra.

... for the Opposite Parties.

Supplementary affidavit filed in Court today be kept

with the record.

This revisional application has been filed challenging

an order dated January 22, 2020, passed in Title Appeal

No.10 of 2016 by the learned Additional District Judge, 5th

court at Howrah. The said appeal arises out of the judgment

and decree passed in Title Suit No.8455 of 2014, by the

learned Civil Judge (Junior Division), 2nd Court at Howrah.

The learned Civil Judge (Junior Division), 2nd Court,

Howrah dismissed the suit filed by the plaintiffs/petitioners

by coming to specific findings that the topography of the

existing holding no.22, Ram Dhan Das Lane as reflected in

the survey map of Mouza Shibpur was classified as a pond,

that the Exhibits-1, 2, Exhibits A, F and G were proof of the

fact that the holding no.22, Ram Dhan Das Lane was a pond.

Exhibit-H, that is the Commissioner's report also

corroborated the fact that the said premises was a pond. No

objection to the Commissioner's report was filed by the

petitioners, and the plaintiffs failed to show that there was a

plot of land measuring about 2 cottahs 9 chitaks and 20 sq. ft

on the eastern side of the holding no.22, Ram Dhan Das

Lane.

The evidence of P.W.1 was also disbelieved in view of

the contradictions therein. On the one hand P.W.1 stated

that the structures were built after filing of the suit on the

other hand, the P.W.1 also stated that the structures existed

prior to 1983. The Court came to a specific finding that there

was nothing on record to show that the holding no.22, Ram

Dhan Das Lane was converted to Bastoo land and the

petitioners had been enjoying the said land by constructing a

temporary R T-shed structure. The defendants on the other

hand produced the partition deed entered into between the

predecessor of the defendants and the co-sharers of holding

no.15/1/4/1, Gopal Lal Choudhary Lane. The father of the

plaintiffs was a witness to such partition deed. The partition

deed mentioned about an existing pathway, which was

corroborated by the survey map and the record of rights. The

plaintiffs' property was situated on the western side of the

passage. Exhibit-A proved that on the northern side of the

holding of the property of the defendants there was a 6 ft.

wide passage and the said passage had become an 8 ft.

passage, abutting the plaintiffs' side of the suit property. The

learned court below also relied upon of the deed of

conveyance of the petitioners, which stated that on the

eastern side of the holding no.22, Ram Dhan Das Lane there

was an existence of common drain. The court also found that

the defendants had a right over the common pathway, even

if, the same had shifted towards the property of the plaintiffs

by 2 ft. Having discussed all the issues, the suit was

dismissed.

The petitioners preferred a title appeal. In the title

appeal the petitioners filed an application for amendment of

the plaint. The learned lower appellate court rejected the

application on the ground that the plaintiffs had failed to

prove that during the pendency of the appeal the pond had

been filled up and was being encroached by construction of

40 ft. long road. The learned lower appellate court also held

that the plaintiffs could not show anything to establish

subsequent encroachment upon the suit property and

construction of a road during the pendency of the appeal.

The learned court came to a finding that the plaintiffs

also could not show any evidence or documents that the

pond had been converted into a Bastu land which was

mutated in the land records as also the records of the

Howrah Municipal Corporation. Thus, the amendment

application was rejected at the subsequent event as pleaded

by the plaintiffs in the said application did not occur during

the pendency of the appeal. The application for amendment

was rejected. The suit was one for declaration of title and a

decree for permanent injunction restraining the defendants

from objecting and/or interfering with the plaintiffs

construction of a part-boundary wall on the eastern side of

the suit property.

The suit was dismissed on the grounds that the

plaintiffs had failed to show that the suit property had been

converted from a pond to a Bastu land and that the

defendants were encroaching into the said 2/9th share of the

plaintiffs over premises no. 22, Ram Dhan Das Lane. The

right and title of the defendants to use the passage along side

the suit property was upheld. Subsequently, in the appeal the

plaintiffs wanted to introduce a pleading and a prayer in

terms of the schedule.

"SCHEDULE I. After paragraph 13 of the plaint the following new paragraphs with the following averments may be incorporated:-

13A. That during pendency of the instant appeal on 25.02.2018 the defendants for the purpose of widening the passage situated to the adjoining eastern side of the suit Holding No.22, Ramdhan Das Lane, P.S. Shibpur, District Howrah encroached a substantial portion of the suit Holding No.22, Ramdhan Das Lane form its eastern side measuring about 40 ft. in length from North to South on the Western side and 39 ft. in length from North to South on the Eastern side and 5ft. 6 inches in width from east to west on the Northern side abutting Ramdhan Das Lane and 4 ft. 1 inch in width from east to west on the Southern side, thin in all measuring 300 sq. ft., more fully described in

the Schedule-"B" to the plaint and shown in the plan annexed to the plaint by "red border line" and converted the same in a concrete passage and have been plying vehicles through the said passage for the purpose of egress and ingress to and from their property situated at Holding No.15/1/4/1, Gopal Lal Chowdhury Lane, P.S. Shibpur, District Howrah in a hightly illegal and arbitrary manner and repeated requests on the part of the plaintiffs to restore the said passage to its former position did not yield any fruit.

13B. That finding no other alternative the plaintiffs rushed before the local Shibpur Police Station in order to lodge a complaint to that effect but the police personnel disclosed their inability to take any action against the defendants on the plea that the dispute is civil in nature and a case is still pending before the Learned Court and ultimately advised the plaintiffs to take recourse to law.

II In paragraph 14 of the plaint after the date "05.09.2010" and before the words "and on" the dates "25.02.2018" may be incorporated.

III In prayer portion of the plaint after sub-paragraph 16 (c-1) a new sub-paragraph as "(c-2)" with the following averments may be incorporated:-

"(c-2) for a further decree mandatory injunction inter alia directing the defendants to restore the passage situated to the adjoining eastern side of the suit Holding No.22, Ramdhan Das Lane, P.S. Shibpur, District Howrah to its former position at their own costs within a stipulated period, failing

which the plaintiffs may be permitted to do the same at their own costs to be realized from the defendants."

IV. In the Schedule of the plaint in the heading "SCHEDULE PROPERTY" the word "PROPERTY" may be substituted by the letter "A".

V. After the proposed Schedule "A" of the plaint a new Schedule as Schedule "B" with the following averments may be incorporated.

SCHEDULE-"B"

ALL THAT piece and parcel of land 40 ft. in length from North to South on the Western side and 39 ft. in length from North to South on the Eastern side and 5ft. 6 inches in width from east to west on the Northern side abutting Ramdhan Das Lane and 4 ft. 1 inch in width from east to west on the Southern side, thus in all measuring about 300 Sq. ft. as shown in the plan annexed to the plaint by "Red border line" forming part of the plaint."

The learned lower appellate court came to a finding

that the plaintiffs failed to produce any document in support

of the proposed amendment and the proposed amendment

sought would introduce a new cause of action at the stage of

appeal, the learned lower appellate court also dismissed the

application observed that the High Court had directed the

lower appellate court to hear out the application for

amendment after making an investigation as to whether the

facts sought to be incorporated by the proposed amendment

actually occurred subsequent to filing of the appeal or not.

As the learned lower appellate court did not find any support

in the contention of the petitioners, the learned lower