Md. Abdul Hai Mondal & Ors vs Noor Islam & Ors
2023 Latest Caselaw 702 Cal

 24.01.2023
  SL No.11
Court No.8
    (gc)


                          SAT 453 of 2015
              CAN 1 of 2015 (Old No: CAN 10209 of 2015)

                      Md. Abdul Hai Mondal & Ors.
                                  Vs.
                           Noor Islam & Ors.

                                   Md. Farhaduddin,
                                   Mr. Rahul Verma,
                                                       ...for the Appellants.



                     We     have   heard   the   learned   Counsel   for     the

              appellants.

                     The judgment and decree of the Trial Court was

              reversed by the First Appellate Court on the ground that

              the Trial Court has failed to consider that the plaintiffs

              were unable to prove their case of easement. It appears

              that   the    plaintiffs/respondents   prayed   for    right    of

easement for egress and ingress over the "Ka" schedule

property which, according to the plaintiffs, is the property

where such right has to be exercised. The plaintiffs

contended that there is a passage in south-west corner in

Dag No.2956 for ingress and egress to the mosque. The

claim of the plaintiffs is of easement by customary usage

for time immemorial. Before the First Appellate Court, it

was argued that the P.W.-1 in his cross-examination had

admitted that there is another passage for ingress and

egress to their house over Plot No.2961. The present

appellants supported the judgment, in fact, we have read

the judgment of the Trial Court which has not discussed

the evidence at all. It was vague. The First Appellate

Court on the basis of the appreciation of evidence found

that all the documents relied upon by the plaintiff No.1

are in relation to the ownership of the plaintiff No.1 and

his sons in respect of the disputed properties. There is no

documentary or oral evidence to show that "Ka" schedule

property is used as passage by the plaintiffs for a long

period of time. No local inspection has been held by the

plaintiffs to prove their case. P.W.-1 in his cross-

examination had admitted that they have alternative

passage for ingress and egress to their land. There was

no independent witness corroborating the case of the

plaintiffs that the plaintiffs have been using "Ka" schedule

property as passage for more than 20 years without any

interruption. No neighbour or any person from the

locality conversant with the facts has come up and

deposed on behalf of the plaintiffs stating that the

plaintiffs used the passage for more than 20 years.

In absence of such evidence, we feel that the First

Appellate Court was justified in reversing the judgment

passed by the Trial Court.

The second appeal, accordingly, stands dismissed at

the admission stage as it does not involve any substantial

question of law.

In view of dismissal of the second appeal at the

admission stage, the application also stands dismissed.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual undertaking.

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