Calcutta High Court (Appellete Side)

Sri Srihari Pradhan & Ors vs Sri Sripati Pradhan & Ors on 21 September, 2023

                                        1


                      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. 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

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.

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.

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.

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

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.

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

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.

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

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.

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

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