Tripura High Court
Shri Sudarshan Sharma vs Shri Raja Paul on 12 April, 2021
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HIGH COURT OF TRIPURA
AGARTALA
FAO 2 OF 2020
Shri Sudarshan Sharma,
S/o Late Shyam Sundar Sharma, resident of
Vill-Deocharra, P.O. & P.S. Panisagar,
District-North Tripura.
.. Appellant.
Versus
1. Shri Raja Paul,
S/o Late Bankim Paul,
2. Shri Bijoy Kumar Paul alias Bijoy Krishna Paul,
S/o Late Bankim Paul.
Both are residents of Vill & P.O. Rajbari,
P.S. Dharmanagar, District-North Tripura.
.. Respondents.
For Appellant(s) : Mr. S. Deb, Sr. Advocate.
Mr. S. Bhattacharjee, Advocate.
For Respondent(s) : Mr. K. N. Bhattacharjee, Sr. Advocate.
Mr. D. Debbarma, Advocate.
Date of hearing &
delivery of Judgment and order : 12.04.2021
Whether fit for reporting : No
HON'BLE MR JUSTICE ARINDAM LODH
Judgment & Order (Oral)
Heard Mr. S. Deb, learned Sr. counsel assisted by Mr. S.
Bhattacharjee, learned counsel appearing for the appellant. Also heard Mr.
K.N. Bhattacharjee, learned Sr. counsel assisted by Mr. D. Debbarma,
learned counsel, appearing for the respondents.
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2. This is an appeal filed under Order XLIII, Rule 1 of the Civil
Procedure Code, 1908, challenging the order dated 17.03.2020 passed by
the learned Civil Judge, Sr. Division, in case No.Civil Misc.(Vio) 26 of
2018 arising out of Civil Misc. 46 of 2017 in connection with Title Suit
No.15 of 2016, titled as Shri Sudarshan Sharma, petitioner Vrs. Shri Raja
Paul and Bijoy Kumar Paul, opposite party-respondents.
3. Briefly stated, the appellant here-in as plaintiff instituted a
suit for declaration of his right to use the pathway described in Schedule-B
of the plaint. Along with this declaratory suit the appellant also had filed
an application under Order XXXIX, Rules 1 & 2 of CPC. The learned trial
court after hearing the petition for injunction under Order XXXIX, Rules 1
and 2 passed an order granting temporary mandatory injunction meaning
thereby the structure erected on the pathway obstructing free egress and
ingress of the plaintiff over the suit pathway has to be removed or
demolished. Being aggrieved of that order, the opposite parties had
preferred appeal under Order XLIII, Rule 1(r) of CPC before the court of
learned District Judge, North Tripura, Dharmanagar. Learned District
Judge also confirmed the order passed by the learned trial court granting
temporary mandatory injunction demolishing structures erected on the
pathway obstructing free egress and ingress of the plaintiff.
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4. Against those orders, the respondent-opposite parties had
preferred a revision application under Article 227 of the Constitution of
India. It was registered as CRP 102/2016 titled as Sri Raja Paul & Another
Vrs. Sri Sudarshan Sharma. A coordinate bench of this Court while
disposing of that revision petition had observed thus:-
"15. This court has also carefully read the sale deed by which
the plaintiff-respondent purchased the suit land. There is no mention of
the said pathway except while describing the southern boundary it has
been described as the egress and ingress path. This is not a transfer of
the said path, but it recognizes the path. Whether that a description
would create a right in favour of the plaintiff-respondent or not, is a
matter of adjudication and at this stage this court would not make any
observation inasmuch as that may affect the process of adjudication of
the suit. Even no reliable prima facie material as to existence of the
alternative path for ingress and egress from the suit land is available in
the records of the trial court.
16. Having regard to all these aspects, this court does not find
that the courts below have exercised the jurisdiction illegally or beyond
their authority. However, this court is of the opinion that the temporary
mandatory injunction as issued pending disposal of the suit is required
to be modified. Without removing the brick wall or the gate that has
been fixed, it is directed by this modified temporary mandatory
injunction that the defendants shall keep the gate open for movement of
the plaintiff or his men over the path as described on the southern
boundary of the suit land. In terms thereof, this petition is disposed of."
5. Since the respondents did not act upon the order of this court
to allow the plaintiff for his free egress and ingress over the suit pathway,
the plaintiff filed an application under Order XXXIX, Rule 2A of CPC for
violation of the order of this court. The respondents filed objection.
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Evidences were recorded. During the proceeding, the learned trial court
had passed an order appointing a survey commissioner to have an
overview of the nature and character of obstruction faced by the petitioner-
plaintiff. The Survey Commissioner issued notice upon the parties.
Thereafter, on the schedule date and time Survey Commissioner made a
thorough survey over the suit pathway and observed thus:-
"No.F.(25)/Survey Commissioner/SDM/DMN/2019-20/30
Dated 03/06/2019
To
The Civil Judge (Senior Division)
Dharmanagar, North Tripura.
Sub: Submission of the survey commissioning report of case no:
Civil Misc.(Vio).26 of 2018 in c/w T.S.15 of 2016.
Sudarshan Sharma,S/o Lt. Shyam Sundar Sharma of Deocharra,
Dharmanagar, North Tripura, --plaintiff
--Vrs--
Sri Raja Paul and Other, S/o Lt. Bankim Paul of Rajbari, North Tripura-
Defendant.
Respected Sir,
In pursuance of your order I have conduct(sic) the commission
on 17.05.2019 after maintain (sic) all codal formalities in presence of
Plaintiff and Defendant. On my physical investigation it is clear that
asking my three no point which results is mention below.
1. The obstruction i.e. welding over the entry and exit gate
removed by the O.P. where is the enternce(sic) path of the plaintiff of his
purchased land but not remove the erected brick wall from the said path.
2. The present position of the enternce(sic) path is that the last
portion of said path has a brick wall which is a obstruction of
enternce(sic) the plaintiff land.
3. There have no any alternative [path of entry to the land
because sarounding(sic) area have large no of dwelling house and
shope(sic).
Schedule (sic) of land details mention in notice copy which is
enclose(sic) herewith.
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This is for favour of your kind information and doing needful
please.
Yours faithfully,
Sd/-
(Sujit Datta)
Survey Commissioner,
O/o the SDM, Dharmanagar, North Tripura."
6. On plain reading of the aforesaid order which is revealed from
Point No.2 that at the last portion of the said path there is brick wall which
creates obstruction of free egress and ingress of the plaintiff through the
said pathway. Thereafter, the parties adduced their respective evidences.
After perusal of the evidences on record and on consideration of the survey
report as stated here-in-above, the learned trial Judge came to the
conclusion that there was no violation of free egress and ingress of the
plaintiff through the said pathway vide order dated 17.03.2020. Feeling
aggrieved of the said order i.e. 17.03.2020, passed by the learned trial
court, the instant first appeal has been filed before this court.
7. Mr. Deb, learned Sr. counsel appearing for the appellant has
submitted that the learned trial court has misconstrued the report of the
Survey Commissioner as well as had failed to read the evidence in their
proper perspective.
8. On the other hand, Mr. K.N. Bhattacharjee, learned Sr.
counsel appearing for the respondents submitted that the learned trial court
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had detected some serious errors committed by the Survey Commissioner.
Mr. Bhattacharjee, learned Sr. counsel has drawn my attention to a portion
of the observation made by a co-ordinate bench of this court in CRP
102/2016 which is referred to supra at Para 15.
9. I have considered the rival submissions advanced by the
learned counsels and taken into consideration Para 15 of the judgment
passed by this court in CRP 102/2016. In Para 15, this court had observed
that there was no mention of the said pathway except while describing the
southern boundary, but it recognizes the path for free egress and ingress of
the plaintiff on the southern boundary. However, the court has left over the
matter to the learned trial court that this point would be decided after a
full-fledged trial.
10. The co-ordinate bench of this court further observed that it
came to the fore that except the suit pathway there was no alternative
means for egress and ingress of the plaintiff-appellant to his land. After
perusal of the direction and observations made in Para 16 of the Judgment
passed in CRP 102/2016, I am of the opinion that the respondent-
defendants herein have misused the good gesture shown by this court. The
evidence led by the parties as well as the Survey Commissioner's report
clearly reveal that there is obstruction in the free egress and ingress of the
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plaintiff-appellant through the suit pathway and this obstruction has been
made by erecting a wall at the last portion of the suit pathway. I am
convinced that this wall has been creating a serious obstruction to the free
egress and ingress of the plaintiff-appellant over the suit pathway.
11. Accordingly, I have no other alternative but to direct the
respondent-defendants to demolish the structure (brick wall) or any other
structure which has been creating obstruction to free egress and ingress of
the plaintiff through the suit pathway within a period of 4 (four) days from
today, failing which, the learned court is directed to demolish all structures
which creates obstruction to the free egress and ingress of the plaintiff-
appellant, over the suit pathway at the cost of respondent-defendants.
The observations made in this order will not affect the trial of
the main suit.
Send a copy of this order to the learned trial court.
Copy of this order also be supplied to the learned counsels of
the parties in course of the day.
JUDGE
