Subodh Jha vs Sunil Chaurasia @ Sunil Kumar ...
2021 Latest Caselaw 4569 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             S.A. No. 59 of 2021
                                   With
                             I.A. No. 6225 of 2021
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          Subodh Jha                                             ...Appellant(s).
                                   Versus
          1. Sunil Chaurasia @ Sunil Kumar Chaurasia
          2. Arti Devi                                           ... Respondent(s)
          CORAM        :     HON'BLE MR. JUSTICE ANANDA SEN.
                                          ------
          For the Appellant(s)            : Mr. Rahul Kumar Gupta, Advocate.
          For the Respondent              :

05/02.12.2021: This appeal will be heard on the following question of law.

(A) Whether the learned Lower Appellate Court while reversing the Judgment and Decree of the Trial Court, has wrongly applied the principles of Easement Act, for Decreeing the Plaintiff suit, in absence of there being any pleading in the Plaint and in absence of any issue framed with regard to the same?

(B) Whether the finding of the learned Lower Appellate Court that "showcause filed by the Defendant no. 1 to the petition under Order 39 Rule 1 and 2 filed by the Plaintiff, cannot be treated as Written Statement" is contrary to the order dated 27.02.2015 passed by Hon'ble Jharkhand High Court in W.P.C. No. 6224 of 2013? (C) Whether in view of the admitted fact that the vendor of the Plaintiff was the owner of 2 Kathas 8 Dhurs and she had sold the same to several persons, including the Plaintiff, it was incumbent upon the plaintiff to have shown that even after transferring portions of the aforesaid property, the vendor of the Plaintiff had sufficient land left and the said disputed road that is the suit land was within the aforesaid total area of 2 Kathas and 8 Dhurs of land?

(D) Whether in absence of the Plaintiff establishing that even after the several transfers by the Plaintiff's vendor, she had sufficient land left which was the suit property, the learned Lower Appellate Court could have Decreed the Plaintiff's suit and that too after setting aside the dismissal of the suit by Trial Court?

Parties are at liberty to frame any other point of law at the stage of hearing. Issue notice to respondents by both processes i.e. registered post with A/D as well as through ordinary process for which requisites etc. must be filed within two weeks.

Since the appeal has been admitted on the substantial question of law and it is the case of the appellant that they will be dispossessed if execution case is not stayed. In that view, I am inclined to stay execution case being Title (Execution) Case No.10 of 2021 pending in the Court of Civil Judge (Senior Division) No. 1, Deoghar. Since the order is passed ex-parte, it will be open to the respondents to appear and pray for modification of the aforesaid order. Accordingly, the interlocutory application is disposed of.

Call for the lower court record.

Rajnish/c.p.2                                                        (ANANDA SEN, J.)