In Rsa 47 /2019 vs Hazi Mahammad Rushan Ali And Ors
2022 Latest Caselaw 251 Tri

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                  HIGH COURT OF TRIPURA
                        AGARTALA
                         I.A. 2/2022
                      In RSA 47 /2019
Md. Chunu Miah                                             ----Appellant(s)
                                     Versus
Hazi Mahammad Rushan Ali and ors.                         ----Respondent(s)

For the Applicant(s) : Mr. D. Bhattacharjee, Sr. Advocate Mr. J. Debbarma, Advocate For Respondent(s) : None HON'BLE MR. JUSTICE ARINDAM LODH Order 03/03/2022

Heard Mr. D. Bhattacharjee, learned senior counsel assisted by Mr. J. Debbarma, learned counsel for the applicant-appellant. The appellant has challenged the judgment and decree dated 29.08.2019 and 03.09.2019 respectively passed by the learned Additional District Judge, Unakoti Judicial District, Kailasahar in connection with case no. Title Appeal 24 of 2019, whereby and whereunder the learned Additional District Judge had dismissed the judgment and decree dated 04.04.2019 and 10.04.2019 respectively passed by the learned Civil Judge (Jr. Division), Kailasahar, Unakoti Judicial District in connection with case no. Title Suit 28 of 2016.

At the time of admission of this appeal, the following substantial questions of law have been formulated:

"(i) Whether non-consideration of fact that the Easement Act has not been extended to the State of Tripura has vitiated the consequential finding?

(ii) Whether there is any necessity of easement of the plaintiff- respondents No. 1 & 2 over the suit path and whether might compel the appellant to allow the respondents No. 1 & 2 draw the electricity line or water line through or over the suit pathway?"

The appeal was listed for hearing on several dates. When the matter came up on 07.02.2022, since none appeared for the appellant, the matter was dismissed for default. Today, the appellant has filed an application for re-admission of the appeal. Since, the matter relates to the year 2019, this court has requested Mr. D. Bhattacharjee, learned senior counsel to argue the case on merit to determine as to whether any substantial question of law is involved at all in this appeal which may be worthy for re-admission of the appeal.

Responding to such request, Mr. Bhattacharjee, learned senior counsel has argued the case on merit.

Mr. Bhattacharjee, learned senior counsel has argued that Easementary Act is not applicable in the State of Tripura.

In response to this submission, in the opinion of this court, it is now well settled that though Easementary Act is not directly applicable in the State of Tripura, but, in a case of this nature, the principle and spirit of Easement Act and its provisions are applicable in the State of Tripura. For the purpose of adjudication of the suit relating to the establishment of one's easementary right over certain land for rendering justice to the parties. Accordingly, the first substantial question of law formulated by this court has been answered. Now, to deal with the second substantial question of law, I do not find that it is at all a substantial question of law much less to say, it is a question of law.

Mr. Bhattacharjee, learned senior counsel, in respect of the second substantial question of law has tried to persuade this court that the plaintiff- respondent, who has claimed easementary right over the suit pathway described in the schedule of the plaint is a jote land of the defendant. He has brought to my notice the Sale Deed (Exbt.1) wherein there is no mention of any road.

On the basis of this argument, I have gone through the judgments of both the courts below.

I find that the learned trial court only had taken note of the last sale transaction whereby Ranjit kumar Acharjee sold his purchased land (including second schedule land) to the defendant no.1 by Exbt. 5/Exbt. B and finally, vide Sale Deed no. I-687, dated 12.04.2002, and since there was no mention of said pathway in the last Sale Deed, the learned trial court had dismissed the suit of the plaintiff, but, in appeal, this point was well-taken by the learned first appellate court. It was noticed that in all the sale transactions between the parties previous to the sale deed no. I-687, the vendors of those sale deeds had mentioned the suit pathway while describing the schedules in the respective sale deeds.

Having noticed of this fact, the learned first appellant court came to a finding that non-mentioning of the suit pathway in the last sale transactions will not exclude the right of the plaintiff to use the said pathway as by way of using the suit pathway for last several decades he has acquired the right to use the said pathway following the principle and spirit of the provisions of the Easementary Act. A few relevant findings of the learned first appellate court may be reproduced here-in-below, for convenience, in extenso:- "14. On perusal of the record, I find, the land purchased by plaintiffs(1st schedule land) and the land purchased by defendant No.1(including 2nd schedule land), both, originally belong to one and common owner Aswini Kumar Das. First sale by Aswini Kumar Das was of eastern side land(including 2nd schedule land) by Ext.6, the sale deed No.1-3090 dated 15.05.1971 to one Harendra Kumar Acharjee,(hereinafter called as 'first purchaser of suit land/servient heritage'). Therefore, Harendra Kumar Acharjee sold the said purchased land(including 2nd schedule land) to Ranji Kumar Acharjee(hereafter called as 'second purchaser of suit land/servient heritage') by Ext.12, the sale deed No.1-2377 dated 01.12.1983. Thereafter, Ranjit Kumar Acahrjee sold his purchased land(including 2nd schedule land) to defendant No.1(hereafter called as 'last/ultimate purchaser of suit land/servient heritage') by Ext.5/Ext.B, the

sale deed(mortgage deed) No.1-777 dated 18.04.2001 and final sale deed No.1-687 dated 12.04.2002.

Similarly, western side land(1st schedule land) was sold by original owner Aswini Kumar Das to Adarini Bala Dey(hereinafter called as 'first purchaser of dominant heritage') by Ext.1, the sale deed No.1-3841 dated 25.09.1972.Thereafter, Adarini Bala Dey sold the said purchased land/dominant heritage to Jaman SHG/defendant No.2 & 3 (hereinafter called 'second purchaser of dominant heritage') by Ext.2, the sale deed No.1-520 dated 13.05.2008. Thereafter, Jaman SHG/defendant No.2 & 3 sold the dominant heritage to plaintiffs(hereinafter called 'last/ultimate purchaser of dominant heritage') by Ext.3, the sale deed No.1-790 dated 25.05.2010.

15. From Ext.6, the sale deed No.1-3090 dated 15.05.1971 executed by original owner of both dominant heritage and servient heritage, I find, in the said sale deed in the north side of the sold land there is mentioning of own road of original owner Aswini Kumar Das and thereafter in the further north there is land of Rashamoy Chanda. Hence, it can be found that while selling eastern side land (including suit path) to Harendra Acharjee original owner kept the provision of road (suit path) in the northern side of sold land. At the time of the said first sale of eastern side land to Harendra Acharjee, the original owner was the owner of western side land (1st schedule land) and thus, it can be said that keeping of provision of road in the north side of the sold land is for the benefit and enjoyment of the 1st schedule land. Harendra Acharjee being party to the said sale deed is bound by the said condition, encumbrance and limitation created, provided and imposed upon his purchased land by original owner. As first purchaser of servient heritage Harendra Acharjee was bound the said encumbrance, the second purchaser of servient heritages namely Ranjit Acharjee was also bound by the said encumbrance as mentioned in his sale deed marked Ext.12 as to the fact that in the north side of his purchased there is two cubits breadth pathway of Adarini Bala Dey(first purchaser of dominant heritage/1st schedule land from original owner) and in the further north there is land of Rabindra Kumar Acharjee. In the similar way, the defendant No.1, the last/ultimate purchaser of the said land including suit pathway is bound by the said encumbrance being purchaser of servient heritage. From Ext.1, the sale deed No.1-3841 dated 25.09.1972, it can be found that while selling dominant heritage/1st schedule land by original owner Aswini Kumar Das he mentioned in the said sale deed that in the east side of the sold land there is purchased land of Harendra Achajree from him(original owner) measuring 0.40 acre and there in the north side of the said boundary there is two cubit road lying east to west. Thus,

it is clear that while transferring 1st schedule land by original owner, the original owner also transferred his right to enjoy suit path to the Adarani Bala Dey. From Ext.2, the sale deed No.1-520 dated 13.05.2008 executed by Adarini Bala in favour of defendant No.2 & 3 and Ext.3, the sale deed No.1-790 dated 25.05.2010 executed by defendant No.2 & 3 in favour of plaintiffs there is also mentioning of road in the east side of the sold land. From Ext.7, the gift deed No.1-1530 dated 21.05.1983, it also can be found that in the south side of gifted land there is mentioning of two cubit road of Adarini Bala Dey. Ext.8 and Ext.9, the resolution of the meeting also corroborated about the existence, use and right of suit path.

16. Considering the fact situation of this case as stated above, I find, the present case is covered by quasi easement. Aswini Kumar Das being the original owner of both the land had right to impose condition on the sold land at the time of sale for enjoyment of retained(non-sold) land in view of Section 8 of the Easement Act. Accordingly, Aswini Kumar Das at the time of sale of his eastern side land to Harendra Kumar Achajee imposed condition of road on the north side of sold land and the same is enforceable and binding on purchaser Harendra Kumar Achajee.

The creation of easement and authority of Aswini Kumar Das to create and impose such condition, limitation and restriction as easement can be understood from Section 8 read with Section 13(d) and illustration (b) of Section 13 of the Easement Act. Section 13 (d) of the Easement Act provided that "(d) If such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied be entitled to such easement."

Illustration (b) of Section 13 of the Easement Act, even though related to easement of necessity, runs as follows:

"(b) A, the owner of two fields, sells one to B, and retains the other. The field retained was, at the date of the sale, used for agricultural purposes only, and is inaccessible except by passing over the field sole to B. A is entitled to a right of way, for agricultural purposes only, over B's field to the field retained."

In this case, it can be found that Aswini Kumar Das having ownership of whole(both eastern and western side) land enjoyed suit path(within eastern side land) for his western side land and accordingly imposed condition, limitation and restriction and created his right to use suit path while transferring land eastern side land(including suit land) to Harendra Kumar Acharjee for enjoyment of western side land(1st

schedule land) and, thus, it can be said that the present case is covered by quasi easement and easement by grant.

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22. That apart, from the evidence of PWS, it is also clear that originally Aswini Kumar Das and thereafter Adarini Bala Dey and lastly plaintiffs have been using the suit path as their pathway for beneficial enjoyment of 1schedule land. Mentioning of road in the sale deeds of plaintiffs and their predecessors and predecessors of defendant No.1(vendor of defendant No.1) proofs the fact that the suit path has been in use continuously, openly and peacefully and without any interference. Therefore, alternatively, it also can be said that the plaintiffs have easement right over the suit path described in 2nd schedule of plaint by way of acquiescence as per Section 15 of the Easement Act and easement by prescription as per Section 25 of the Limitation Act. I am also of the view that non mentioning of road of Adarini Bala Dey in north side in the sale deed of defendant No.1 by his vendor Ranjit Acharjee for the reason best known to the party is not a factor to extinguish easement right created in favour of plaintiffs and their predecessor even though there is alternative pathway as in the sale deed of the vendor of defendant No.1 and vendor of vendor of defendant No.1 have mentioning of such road."

On careful appreciation of the above discussions and findings, I find no ground which may call for interference with the judgment and decree passed by the first appellate court, which has correctly dismissed the judgment and decree passed by the learned trial court.

Since, the essential elements required to establish substantial question of law are absent in this appeal, I am not inclined to re-admit this second appeal. Accordingly, the application for re-admission of the appeal stands dismissed. Consequently, the second appeal also stands dismissed.

JUDGE

Saikat