Ajit Kumar Malik & Anr vs Gobinda Malik
2022 Latest Caselaw 8095 Cal

06.12.2022 SL No.23 Court No.8 (gc) SAT 244 of 2016

Ajit Kumar Malik & Anr.

Vs.

Gobinda Malik

This matter appeared in the warning list on 16th

November, 2022 with a clear indication that the appeal

shall be transferred to the daily list on 21st November,

2022.

The appellants are not represented nor any

accommodation is prayed for on behalf of the appellants,

although, the appellants have sufficient knowledge and

notice of the listing of this matter. This appeal was filed

in the year 2016 but since then no attempt has been

made to move this appeal. The Additional Stamp Reporter

has in his report dated 18.06.2016 indicated few defects.

No attempt has been made to remove the defects.

The appellate decree dated 15.03.2016 affirming the

judgment and decree dated 20.03.2013 passed by the

learned Trial Court is a subject matter of challenge in this

second appeal. The plaintiffs filed a suit for declaration

and injunction in respect of item no.1 of Schedule A of the

plaint and item no.2 of the said schedule which are large

tanks and situated adjacent to each other. The plaintiffs

claimed to have acquired indefeasible right of easement by

way over the passage leading to the said two tanks which,

according to the plaintiffs are being obstructed by the

defendant. The plaintiffs alleged that the defendant raised

a wall on the passage in order to obstruct the plaintiffs to

have a clear access to the said two tanks. The defendant

is the owner of plot Nos.940 and 941 which comprises of

two parts of the passage described in Schedule C to the

plaint. The defendant filed the written statement in which

it was claimed that the plaintiffs have an alternative route

to the Ghat through Panchayat road and there was no

requirement to use the Kancha Ghat of Sanyasee Pukur

described in item No.1 of the Schedule "A". Similar plea

was taken in respect of other property. The Trial Court

dismissed the suit on the ground of defect of parties as

well as failure on the part of the plaintiffs to prove any

such obstruction. The suit was filed before the

completion of the statutory period of 20 years which was

the requirement of acquisition of easement. The First

Appellate Court in affirming the order has relied upon the

report filed by the Commissioner has recorded the version

of the local people as regards the construction of fence

and the user of the passage to reach the said two ponds

by the plaintiffs and their family members as well as local

residents. There was no evidence that the said passage

was being used for time immemorial by the family of the

plaintiffs and local residents.

The concurrent finding of facts based on cogent

evidence is not called for any interference at the

admission stage.

Accordingly, the second appeal stands dismissed at

the admission stage.

However, there shall be no order as to costs.

(Uday Kumar, J.)                       (Soumen Sen, J.)