In a decision of the Hon’ble Apex Court reported in (2003)2 SCC 330, Pratibha Singh & another vs. Shanti Devi Prasad & another, it has been held in paragraph 17 as follows :-
“17. When the suit as to immoveable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case – which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected u/s 152 CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decreetal property may be ascertained by executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC.”
14. Relying upon the said decision of the Hon’ble Apex Court this Court has held in the case of Monoranjan Dutta vs. Narayan Dhar, reported in 2006 (4) GLT 160 that the failure to give a description of the suit property by giving boundaries etc. in the plaint is not fatal and can be cured at a later stage. It has been held that providing those descriptions are only optional to the plaintiff and not obligatory one.
15. From a plain reading of the provisions of Order VII Rule 3 CPC it is evident that the underlying object is to ensure that a decree involving immovable property can be executed with proper identification of the suit property and therefore the said provision is directory in nature. If there arises any confusion in identifying the property the court would be entitled to call for additional particulars and such lacunae, if any, would be curable in nature. It is not the case of the defendant/respondent that the plaintiff has deliberately suppresses the factual particulars to his knowledge despite directions passed to that effect by the Court to furnish the same. The suit not being one for recovery of immovable property, Order XX Rule 9 CPC will not have any application in the facts of the present case.
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
R.S.A.No. 139 of 2001
APPELLANT :
Shri Dwaraka Prasad Agarwalla,
-Versus-
On the death of sole respondent
Sri Nil Kamal Bezbarua, his legal heirs :-
1. (a) Smti. Sarada Bezbarua (wife)
(b) Sri Prabhat Bezbarua (son)
(c) Sri Kamal Kishore Bezbarua (son)
BEFORE
HON’BLE MR. JUSTICE SUMAN SHYAM
Read original judgment here;click here
Citation;AIR 2015 Gauhati high court33
1. This Second Appeal has been preferred against the judgment dated 23.08.2001 and decree dated 31.08.2001 passed by the learned District Judge, Jorhat in Title Appeal No.2/2001 allowing the appeal by reversing the judgment dated 04.12.2000 and decree dated 21.12.2000 passed by the learned Civil Judge (Senior Division), Jorhat in Title Suit No.67/1987 decreeing the suit of the appellant/plaintiff.
2. The Second Appeal had been admitted to be heard on the following substantial question of law :-
“Whether non-furnishing of particulars of Schedule-B land makes the property unidentifiable when Schedule-B land is a part of Schedule-A land where full particulars are given as has been held by the learned court below?”
The appellant had been given the liberty to urge any other substantial question of law if so emerging in the course of hearing of the appeal.
3. The appellant/plaintiff had preferred the suit being Title Suit No.67/1987 in the Court of learned Civil Judge (Senior Division), Jorhat, inter alia, praying for a decree declaring absolute, unfettered and exclusive right of the suit land to enjoy the same without any interference by virtue of his interest in it; a decree for permanent injunction and for other consequential reliefs. The case of the
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plaintiff/appellant, in brief, is that the plaintiff had purchased a plot of land measuring 1 Bigha 3 Kathas 12 Lechas covered by Dag No.750 of PP No.118 of Charaibahi mouza, No.1 Chaudang Gaon in the district of Jorhat, Assam which is the Schedule-A land. The said land was purchased by the plaintiff/appellant from one Maya Lingdoh by a registered deed of sale executed on 08.04.1987 on the basis of which the possession of the land was handed over to the plaintiff. The land in Schedule – A originally belonged to Derrila Lingdoh who resided therein since the year 1935. After her death the said plot of land was jointly inherited by Maya Lingdoh and Idoriah Lingdoh, both nieces of Derrila Lingdoh. The strip of land measuring 18 ft. X 66 ft. running from Gar-Ali to the Schedule-A land had been used as a pathway originally by Derrila Lingdoh as the same was the only way for ingress and egress to the Schedule-A land. After the purchase of the said land by the plaintiff/appellant by means of the registered sale deed the plaintiff had also started using the Schedule-B strip of land as a pathway for ingress and egress to his Schedule-A land to which the defendant created obstruction that had lead to the filing of the title suit. Therefore, the entitlement of the right of way of the plaintiff over the Schedule-B land is the subject matter of the present suit.
4. The defendant contested the suit of the plaintiff by filing written statements whereby he has categorically denied the existence of the Schedule-B strip of land originating from Gar-ali, Jorhat and terminating to the land in Schedule-A to the plaint which was being
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described by the plaintiff as the only passage for ingress and egress to his land. The defendant further took a plea that the strip of land adjoining the land in Schedule-A was standing in the records of rights in the name of the defendant along with other co-pattadars and was being lawfully possessed and enjoyed peacefully and uninterruptedly by the defendant along with other co-pattadars. The defendant further took a plea that Smti. Maya Lingdoh i.e. the vendor of the plaintiff/appellant was not competent to execute the deed of sale in respect of the Schedule-A land in favour of the plaintiff/appellant and therefore the suit was liable to be dismissed.
5. On the basis of the pleadings the learned trial Court framed as many as three issues which as are follows :-
I S S U E S
(1) Whether there is a cause of action for the suit ?
(2) Whether the plaintiff is entitled in law to use and utilize the 18 ft. X 66 ft. strip of land described in Schedule-B of the plaint from Gar-ali to the land described in Schedule-A of the plaint ?
(3) Whether the plaintiff is entitled to permanent injunction against the defendant from blocking the strip of land mentioned in Schedule-B of the plaint?
6. The plaintiff’s side examined two witnesses whereas the defendant examined himself as the sole witness.
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7. On examining the pleadings as well as the evidence available on record the learned trial Court arrived at the finding that the plaintiff/appellant had purchased the Schedule-A land by means of the registered deed of sale dated 08.04.1987 and further that the strip of land mentioned in Schedule-B of the plaint was, in fact, used as the only passage from Gar-Ali to Schedule-A land by the previous owners of the Schedule-A land since the year 1935 .
8. The Trial Court further took note of the admission made by the defendant in his deposition whereby he had stated that the Schedule-A land belonged to Derrila Lingdoh and that she was allowed to use Schedule-B land as a passage to her Schedule-A land on her request. The DW1 also stated in his evidence that Derrila Lingdoh died prior to the year 1982 and after her death the permission to use the Schedule-B land as a path way automatically came to an end. The said admission of the defendant was, however, completely contrary and inconsistent with his pleaded stand in the written statement whereby he had denied the very existence of the pathway. Moreover, there is not even a whisper in the written statement that Derrila Lingdoh was allowed to use the Schedule-B pathway as a permissive user. It is also admitted by the defendant that there is no other pathway for ingress and egress to the Schedule-A land. On the basis of such findings the learned trial Court arrived at the conclusion that the pathway mentioned in Schedule-B of the plaint had been used by Derrila Lingdoh for ingress and egress to the Schedule-A land during her lifetime and after her death by her
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successors-in-interest. As such, since the plaintiff purchased the Schedule-A land by means of a registered deed and in view of the fact that the Schedule-B strip of land was the only pathway from Gar-Ali to Schedule-A land , hence the issue No.2 was decided in favour of the plaintiff. Accordingly the suit was decreed by the trial Court.
8. The learned lower appellate Court reversed the findings of the trial court primarily on two grounds. Firstly, the learned appellate court was of the view that the plaintiff having purchased the Schedule-A land on 08.04.1987 and the suit having been instituted on 27.06.1987 i.e. after about 2 ½ months from the alleged purchase, the appellant/plaintiff, at best, could have had possession over the Schedule-B land only for the said period of 2 ½ months which period was not good enough to entitle him for a decree as prayed for. Secondly, the learned lower appellate court had also held that the description of the land included in Schedule-B was not proper and sufficient as the same did not disclose the boundary, dag or patta number. As such, in view of the provisions of Order VII Rule 3 read with Order XX Rule 9, CPC, the trial Court ought to have returned the plaint for amendment and the plaintiff ought to have removed the defects by amendment. On the basis of such findings and conclusions the lower appellate court reversed the judgment and decree passed by the trial court. Hence, this Second Appeal.
9. I have heard Sri G. N. Sahewalla, learned Senior Counsel assisted by Smt. S. Sarma, learned counsel for the appellant and also heard Sri S. K. Ghosh, learned counsel for the respondent.
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10. Mr. G. N. Sahewalla, learned Senior Counsel, submits that the description of the land indicated in the schedule-A and B taken together is sufficient to identify the suit land and hence, it was not a case of total non-compliance of the requirement of Order VII Rule 3 CPC. Mr. Sahewalla further submits that the appellant/defendant has categorically admitted in his evidence that the Schedule-A land belonged to Derrila Lingdoh and that said Derrila Lingdoh did use the Schedule-B land as a pathway to her Schedule-A land without any obstruction or interference from any quarters until her death prior to 1982. Enjoyment of such right of way over the Schedule-B land by Derrila Lingdoh was admittedly for a period in excess of 20 years in continuation. Mr. Sahewalla further submits that it is the admitted position of fact that the Schedule-B land is the only pathway for accessing the Schedule-A land and therefore usage of the pathway in Schedule-B is a matter of necessity for the owners of the Schedule-A land. He submits that the aforesaid admission of fact coupled with the evidence led on behalf of the plaintiff clearly makes out a strong case of acquisition of easement by prescription under Section 25 of the Limitation Act, 1963 and the appellant/plaintiff is entitled under the law for protection of such right which has passed on to him by operation of law.
11. Mr. S. K. Ghosh, learned counsel for the defendant/respondent, while opposing the submissions made by the learned counsel for the appellant has argued that the plaintiff has failed to furnish proper
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and complete particulars for identification of the Schedule-B land and as such the decision and conclusions reached by the learned lower appellate court are completely justified. By relying upon the decision of this Court in the case of Jogeswar Gayon vs. Motiram Bora & others reported in (2003)3 GLR 160, he further submits that even in order to claim any right under Section 25 of the Limitation Act, 1963 continuity of usage for a minimum period of 20 years has to be pleaded and established by leading cogent evidence, which burden the plaintiff/appellant has failed to discharge. In that view of the matter, he submits, the judgment dated 23.08.2001 does not call for any interference.
12. I have considered the rival submissions and also gone through the records of the case. Since an issue has been raised regarding the proper identification of the suit land, it may be useful to reproduce the Schedules-A and B contained in the plaint :-
“SCHEDULE – A
The land measuring 1 Bigha 3 Kathas 12 Lechas covered by P.P. No.118 Dag No.750 of Charaibahi Mouza No.1 Chaudang Gaon, district of Jorhat, Assam bounded by –
North :- Ram Kamal Bezbarua and others Dag No.746
South :- Jorhat Tea Co. Dag No.751
East :- Gar-Ali Rail Line Dag No.749
(Nil Kamal Bezbarua/Ram Kamal Bezbarua)
West :- Jorehaut Tea Co. Dag No.752.
SCHEDULE- B
The land measuring 18 ft. X 66 ft. strip of land from Gar-Ali to the land of Schedule-A.”
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From the above it would be evident that the Dag No, Patta No and the boundary of the land have been clearly indicated in the Schedule-A to the Plaint. Although no Dag No / Patta No has been separately indicated in Schedule –B yet the plaintiff has given the coordinates and the dimensions of the Schedule-B strip of land with reference to the Schedule-A land by indicating the precise length and breadth of the pathway.
13. Order VII Rule 3 CPC provides that where the subject matter of the suit is an immoveable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. From the reading of the same it is thus clear that the plaintiff is required to describe the suit property with sufficient particulars necessary for identification of the same. Whether a particular immovable property has been sufficiently described in the plaint so as to easily identify the same would depend on the facts and circumstances of each case. In the instant case, although the dag and Patta numbers and the boundary in respect of the Schedule-B land has not been indicated in the schedule-B, yet, there were sufficient particulars available on record so as to identify the said strip of land. Moreover, as would appear from the evidence of the DW 1, even the defendant himself had clearly acknowledged the existence of the said strip of land without raising any question as regards the
correctness of the particulars contained in Schedule-B. Being satisfied with such particulars available on record the learned trial Court decreed the plaintiff’s suit.
13. In a decision of the Hon’ble Apex Court reported in (2003)2 SCC 330, Pratibha Singh & another vs. Shanti Devi Prasad & another, it has been held in paragraph 17 as follows :-
“17. When the suit as to immoveable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case – which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected u/s 152 CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decreetal property may be ascertained by executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC.”
14. Relying upon the said decision of the Hon’ble Apex Court this Court has held in the case of Monoranjan Dutta vs. Narayan Dhar, reported in 2006 (4) GLT 160 that the failure to give a description of the suit property by giving boundaries etc. in the plaint is not fatal and can be cured at a later stage. It has been held that providing those descriptions are only optional to the plaintiff and not obligatory one.
15. From a plain reading of the provisions of Order VII Rule 3 CPC it is evident that the underlying object is to ensure that a decree involving immovable property can be executed with proper identification of the suit property and therefore the said provision is directory in nature. If there arises any confusion in identifying the property the court would be entitled to call for additional particulars and such lacunae, if any, would be curable in nature. It is not the case of the defendant/respondent that the plaintiff has deliberately suppresses the factual particulars to his knowledge despite directions passed to that effect by the Court to furnish the same. The suit not being one for recovery of immovable property, Order XX Rule 9 CPC will not have any application in the facts of the present case.
16. As regards the question of acquisition of easement by prescription within the meaning of Section 25 of the Limitation Act, 1963 the section itself lays down the conditions for acquisition of such a right by way of prescription. It would be apposite to reproduce herein Section 25 of the Limitation Act, 1963 :-
“25. Acquisition of easement by prescription.----
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(1) Where the access and use of light or air to and for any building have been peacefully enjoyed therewith as an easement, and as of right, without interruption, and for 20 years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peacefully and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for 20 years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.
(2) Each of the said periods of 20 years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates i.e. contested.
(3) Where the property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words “20 years” the words “30 years” were substituted.”
From the language employed in section 25 as above, it is evident that a person claiming easement by way of prescription must have enjoyed the access and use of the said right openly, peacefully and without interruption for a period of 20 years.
17. In the instant case it is the admitted position of fact that Derrila Lingdoh having purchased the suit land in the year 1935 has been openly, peacefully and continuously using Schedule-B strip of land for access to Schedule-A land until her death prior to 1982 i.e. for a period more than 20 years. Therefore, Derrila Lingdoh had evidently acquired easement by prescription over the B-scheduled land. The
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usage of words such as “absolute” and “ indefeasible” in section 25 denotes that such right would be conclusive, unconditional and irrevocable in nature.
Therefore, such right accruing to Derrila Lingdoh during her life time over the Schedule-B passage was incidental to her title and interest over the Schedule-A land and hence, would be in the nature of a permanent, inheritable and transferable right.
18. There can be no doubt about the fact that in order to acquire easement by prescription under Section 25 of the Act of 1963, the claimant not only would have to lay down factual foundations in the pleadings but would also have to lead evidence so as to establish the peaceful, open and uninterrupted usage of the said right continuously for a period of 20 years. In the present case the defendant himself has admitted in his evidence that Derrila Lingdoh had been using the Schedule –B strip of land during her life time till her death i.e. prior to the year 1982. The defendant/ respondent has stated in his evidence that he has seen Derrila in the schedule-A land around 1950 and that she was in use of the passage shown in Schedule-B land. It is also admitted by the defendant/ respondent that the Schedule –B land is the only path way to access the Schedule-A land.
19. It is settled law that facts admitted need not be proved. An admission of fact is the best evidence that can be gainfully pressed into service by the opposite side. From the material evidence
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available on record it is found that an easement by prescription within the meaning of section 25 of the Limitation Act 1963 had clearly accrued in favour of Derrilla Lingdoh over Schedule-B land during her life time. Such right having been accrued upon the predecessor-in-interest of the plaintiff’s vendor by operation of law, the said right devolved upon her successors-in-interest after death of Derrilla and eventually stood transferred in favour of the plaintiff on his stepping into the shoes of his vendor upon purchase of the Schedule-A land by means of a registered deed of sale. The right to use the passage in Schedule –B is a bare necessity for the Plaintiff since there is no other access to the Schedule-A land belonging to him. The Plaintiff would, therefore, be entitled to enjoy such easement over Schedule-B passage until his right ,title and interest over the suit land stands extinguished under due process of law .
20. The defendant / respondent has made a veiled attempt to question the validity of the sale transaction by which the plaintiff / appellant had purchased the Schedule-A land. However, since the validity of the registered deed of sale executed on 8-4-1987 is not under challenge in the present proceeding this court is not inclined to go into that aspect of the matter, more so , in view of the fact that the defendant / respondent appears to have already instituted a separate proceeding being Title Suit No 23/1988 before a competent court questioning the Title of the plaintiff/ appellant over the Schedule-A land.
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21. For the reasons stated above, in the facts and circumstances of the case it is held that upon purchase of the Schedule-A land by a registered sale deed, the plaintiff had stepped into the shoes of his vendor and hence, there was no further requirement on the part of the plaintiff/appellant to lead evidence to establish his possession over the Schedule-B land for 20 years in his individual capacity. Moreover, such a plea not having been taken by the defendant/ respondent in the pleadings, he cannot be allowed to urge the same at this stage.
22. In view of the foregoing discussions, it is held that the judgment dated 23.08.2001 and decree dated 31.08.2001 passed by the learned lower appellate court are not sustainable in law and hence the same are hereby set aside. The judgment dated 4-12-2000 and decree dated 21-12-2000 passed by the learned trial court stands affirmed. Consequently, this appeal stands allowed.
Parties to bear their own cost.
Registry may send back the records.
JUDGE
T U Choudhury
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“17. When the suit as to immoveable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case – which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected u/s 152 CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decreetal property may be ascertained by executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC.”
14. Relying upon the said decision of the Hon’ble Apex Court this Court has held in the case of Monoranjan Dutta vs. Narayan Dhar, reported in 2006 (4) GLT 160 that the failure to give a description of the suit property by giving boundaries etc. in the plaint is not fatal and can be cured at a later stage. It has been held that providing those descriptions are only optional to the plaintiff and not obligatory one.
15. From a plain reading of the provisions of Order VII Rule 3 CPC it is evident that the underlying object is to ensure that a decree involving immovable property can be executed with proper identification of the suit property and therefore the said provision is directory in nature. If there arises any confusion in identifying the property the court would be entitled to call for additional particulars and such lacunae, if any, would be curable in nature. It is not the case of the defendant/respondent that the plaintiff has deliberately suppresses the factual particulars to his knowledge despite directions passed to that effect by the Court to furnish the same. The suit not being one for recovery of immovable property, Order XX Rule 9 CPC will not have any application in the facts of the present case.
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
R.S.A.No. 139 of 2001
APPELLANT :
Shri Dwaraka Prasad Agarwalla,
-Versus-
On the death of sole respondent
Sri Nil Kamal Bezbarua, his legal heirs :-
1. (a) Smti. Sarada Bezbarua (wife)
(b) Sri Prabhat Bezbarua (son)
(c) Sri Kamal Kishore Bezbarua (son)
BEFORE
HON’BLE MR. JUSTICE SUMAN SHYAM
Read original judgment here;click here
Citation;AIR 2015 Gauhati high court33
1. This Second Appeal has been preferred against the judgment dated 23.08.2001 and decree dated 31.08.2001 passed by the learned District Judge, Jorhat in Title Appeal No.2/2001 allowing the appeal by reversing the judgment dated 04.12.2000 and decree dated 21.12.2000 passed by the learned Civil Judge (Senior Division), Jorhat in Title Suit No.67/1987 decreeing the suit of the appellant/plaintiff.
2. The Second Appeal had been admitted to be heard on the following substantial question of law :-
“Whether non-furnishing of particulars of Schedule-B land makes the property unidentifiable when Schedule-B land is a part of Schedule-A land where full particulars are given as has been held by the learned court below?”
The appellant had been given the liberty to urge any other substantial question of law if so emerging in the course of hearing of the appeal.
3. The appellant/plaintiff had preferred the suit being Title Suit No.67/1987 in the Court of learned Civil Judge (Senior Division), Jorhat, inter alia, praying for a decree declaring absolute, unfettered and exclusive right of the suit land to enjoy the same without any interference by virtue of his interest in it; a decree for permanent injunction and for other consequential reliefs. The case of the
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plaintiff/appellant, in brief, is that the plaintiff had purchased a plot of land measuring 1 Bigha 3 Kathas 12 Lechas covered by Dag No.750 of PP No.118 of Charaibahi mouza, No.1 Chaudang Gaon in the district of Jorhat, Assam which is the Schedule-A land. The said land was purchased by the plaintiff/appellant from one Maya Lingdoh by a registered deed of sale executed on 08.04.1987 on the basis of which the possession of the land was handed over to the plaintiff. The land in Schedule – A originally belonged to Derrila Lingdoh who resided therein since the year 1935. After her death the said plot of land was jointly inherited by Maya Lingdoh and Idoriah Lingdoh, both nieces of Derrila Lingdoh. The strip of land measuring 18 ft. X 66 ft. running from Gar-Ali to the Schedule-A land had been used as a pathway originally by Derrila Lingdoh as the same was the only way for ingress and egress to the Schedule-A land. After the purchase of the said land by the plaintiff/appellant by means of the registered sale deed the plaintiff had also started using the Schedule-B strip of land as a pathway for ingress and egress to his Schedule-A land to which the defendant created obstruction that had lead to the filing of the title suit. Therefore, the entitlement of the right of way of the plaintiff over the Schedule-B land is the subject matter of the present suit.
4. The defendant contested the suit of the plaintiff by filing written statements whereby he has categorically denied the existence of the Schedule-B strip of land originating from Gar-ali, Jorhat and terminating to the land in Schedule-A to the plaint which was being
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described by the plaintiff as the only passage for ingress and egress to his land. The defendant further took a plea that the strip of land adjoining the land in Schedule-A was standing in the records of rights in the name of the defendant along with other co-pattadars and was being lawfully possessed and enjoyed peacefully and uninterruptedly by the defendant along with other co-pattadars. The defendant further took a plea that Smti. Maya Lingdoh i.e. the vendor of the plaintiff/appellant was not competent to execute the deed of sale in respect of the Schedule-A land in favour of the plaintiff/appellant and therefore the suit was liable to be dismissed.
5. On the basis of the pleadings the learned trial Court framed as many as three issues which as are follows :-
I S S U E S
(1) Whether there is a cause of action for the suit ?
(2) Whether the plaintiff is entitled in law to use and utilize the 18 ft. X 66 ft. strip of land described in Schedule-B of the plaint from Gar-ali to the land described in Schedule-A of the plaint ?
(3) Whether the plaintiff is entitled to permanent injunction against the defendant from blocking the strip of land mentioned in Schedule-B of the plaint?
6. The plaintiff’s side examined two witnesses whereas the defendant examined himself as the sole witness.
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7. On examining the pleadings as well as the evidence available on record the learned trial Court arrived at the finding that the plaintiff/appellant had purchased the Schedule-A land by means of the registered deed of sale dated 08.04.1987 and further that the strip of land mentioned in Schedule-B of the plaint was, in fact, used as the only passage from Gar-Ali to Schedule-A land by the previous owners of the Schedule-A land since the year 1935 .
8. The Trial Court further took note of the admission made by the defendant in his deposition whereby he had stated that the Schedule-A land belonged to Derrila Lingdoh and that she was allowed to use Schedule-B land as a passage to her Schedule-A land on her request. The DW1 also stated in his evidence that Derrila Lingdoh died prior to the year 1982 and after her death the permission to use the Schedule-B land as a path way automatically came to an end. The said admission of the defendant was, however, completely contrary and inconsistent with his pleaded stand in the written statement whereby he had denied the very existence of the pathway. Moreover, there is not even a whisper in the written statement that Derrila Lingdoh was allowed to use the Schedule-B pathway as a permissive user. It is also admitted by the defendant that there is no other pathway for ingress and egress to the Schedule-A land. On the basis of such findings the learned trial Court arrived at the conclusion that the pathway mentioned in Schedule-B of the plaint had been used by Derrila Lingdoh for ingress and egress to the Schedule-A land during her lifetime and after her death by her
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successors-in-interest. As such, since the plaintiff purchased the Schedule-A land by means of a registered deed and in view of the fact that the Schedule-B strip of land was the only pathway from Gar-Ali to Schedule-A land , hence the issue No.2 was decided in favour of the plaintiff. Accordingly the suit was decreed by the trial Court.
8. The learned lower appellate Court reversed the findings of the trial court primarily on two grounds. Firstly, the learned appellate court was of the view that the plaintiff having purchased the Schedule-A land on 08.04.1987 and the suit having been instituted on 27.06.1987 i.e. after about 2 ½ months from the alleged purchase, the appellant/plaintiff, at best, could have had possession over the Schedule-B land only for the said period of 2 ½ months which period was not good enough to entitle him for a decree as prayed for. Secondly, the learned lower appellate court had also held that the description of the land included in Schedule-B was not proper and sufficient as the same did not disclose the boundary, dag or patta number. As such, in view of the provisions of Order VII Rule 3 read with Order XX Rule 9, CPC, the trial Court ought to have returned the plaint for amendment and the plaintiff ought to have removed the defects by amendment. On the basis of such findings and conclusions the lower appellate court reversed the judgment and decree passed by the trial court. Hence, this Second Appeal.
9. I have heard Sri G. N. Sahewalla, learned Senior Counsel assisted by Smt. S. Sarma, learned counsel for the appellant and also heard Sri S. K. Ghosh, learned counsel for the respondent.
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10. Mr. G. N. Sahewalla, learned Senior Counsel, submits that the description of the land indicated in the schedule-A and B taken together is sufficient to identify the suit land and hence, it was not a case of total non-compliance of the requirement of Order VII Rule 3 CPC. Mr. Sahewalla further submits that the appellant/defendant has categorically admitted in his evidence that the Schedule-A land belonged to Derrila Lingdoh and that said Derrila Lingdoh did use the Schedule-B land as a pathway to her Schedule-A land without any obstruction or interference from any quarters until her death prior to 1982. Enjoyment of such right of way over the Schedule-B land by Derrila Lingdoh was admittedly for a period in excess of 20 years in continuation. Mr. Sahewalla further submits that it is the admitted position of fact that the Schedule-B land is the only pathway for accessing the Schedule-A land and therefore usage of the pathway in Schedule-B is a matter of necessity for the owners of the Schedule-A land. He submits that the aforesaid admission of fact coupled with the evidence led on behalf of the plaintiff clearly makes out a strong case of acquisition of easement by prescription under Section 25 of the Limitation Act, 1963 and the appellant/plaintiff is entitled under the law for protection of such right which has passed on to him by operation of law.
11. Mr. S. K. Ghosh, learned counsel for the defendant/respondent, while opposing the submissions made by the learned counsel for the appellant has argued that the plaintiff has failed to furnish proper
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and complete particulars for identification of the Schedule-B land and as such the decision and conclusions reached by the learned lower appellate court are completely justified. By relying upon the decision of this Court in the case of Jogeswar Gayon vs. Motiram Bora & others reported in (2003)3 GLR 160, he further submits that even in order to claim any right under Section 25 of the Limitation Act, 1963 continuity of usage for a minimum period of 20 years has to be pleaded and established by leading cogent evidence, which burden the plaintiff/appellant has failed to discharge. In that view of the matter, he submits, the judgment dated 23.08.2001 does not call for any interference.
12. I have considered the rival submissions and also gone through the records of the case. Since an issue has been raised regarding the proper identification of the suit land, it may be useful to reproduce the Schedules-A and B contained in the plaint :-
“SCHEDULE – A
The land measuring 1 Bigha 3 Kathas 12 Lechas covered by P.P. No.118 Dag No.750 of Charaibahi Mouza No.1 Chaudang Gaon, district of Jorhat, Assam bounded by –
North :- Ram Kamal Bezbarua and others Dag No.746
South :- Jorhat Tea Co. Dag No.751
East :- Gar-Ali Rail Line Dag No.749
(Nil Kamal Bezbarua/Ram Kamal Bezbarua)
West :- Jorehaut Tea Co. Dag No.752.
SCHEDULE- B
The land measuring 18 ft. X 66 ft. strip of land from Gar-Ali to the land of Schedule-A.”
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From the above it would be evident that the Dag No, Patta No and the boundary of the land have been clearly indicated in the Schedule-A to the Plaint. Although no Dag No / Patta No has been separately indicated in Schedule –B yet the plaintiff has given the coordinates and the dimensions of the Schedule-B strip of land with reference to the Schedule-A land by indicating the precise length and breadth of the pathway.
13. Order VII Rule 3 CPC provides that where the subject matter of the suit is an immoveable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. From the reading of the same it is thus clear that the plaintiff is required to describe the suit property with sufficient particulars necessary for identification of the same. Whether a particular immovable property has been sufficiently described in the plaint so as to easily identify the same would depend on the facts and circumstances of each case. In the instant case, although the dag and Patta numbers and the boundary in respect of the Schedule-B land has not been indicated in the schedule-B, yet, there were sufficient particulars available on record so as to identify the said strip of land. Moreover, as would appear from the evidence of the DW 1, even the defendant himself had clearly acknowledged the existence of the said strip of land without raising any question as regards the
correctness of the particulars contained in Schedule-B. Being satisfied with such particulars available on record the learned trial Court decreed the plaintiff’s suit.
13. In a decision of the Hon’ble Apex Court reported in (2003)2 SCC 330, Pratibha Singh & another vs. Shanti Devi Prasad & another, it has been held in paragraph 17 as follows :-
“17. When the suit as to immoveable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case – which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected u/s 152 CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decreetal property may be ascertained by executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC.”
14. Relying upon the said decision of the Hon’ble Apex Court this Court has held in the case of Monoranjan Dutta vs. Narayan Dhar, reported in 2006 (4) GLT 160 that the failure to give a description of the suit property by giving boundaries etc. in the plaint is not fatal and can be cured at a later stage. It has been held that providing those descriptions are only optional to the plaintiff and not obligatory one.
15. From a plain reading of the provisions of Order VII Rule 3 CPC it is evident that the underlying object is to ensure that a decree involving immovable property can be executed with proper identification of the suit property and therefore the said provision is directory in nature. If there arises any confusion in identifying the property the court would be entitled to call for additional particulars and such lacunae, if any, would be curable in nature. It is not the case of the defendant/respondent that the plaintiff has deliberately suppresses the factual particulars to his knowledge despite directions passed to that effect by the Court to furnish the same. The suit not being one for recovery of immovable property, Order XX Rule 9 CPC will not have any application in the facts of the present case.
16. As regards the question of acquisition of easement by prescription within the meaning of Section 25 of the Limitation Act, 1963 the section itself lays down the conditions for acquisition of such a right by way of prescription. It would be apposite to reproduce herein Section 25 of the Limitation Act, 1963 :-
“25. Acquisition of easement by prescription.----
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(1) Where the access and use of light or air to and for any building have been peacefully enjoyed therewith as an easement, and as of right, without interruption, and for 20 years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peacefully and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for 20 years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.
(2) Each of the said periods of 20 years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates i.e. contested.
(3) Where the property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words “20 years” the words “30 years” were substituted.”
From the language employed in section 25 as above, it is evident that a person claiming easement by way of prescription must have enjoyed the access and use of the said right openly, peacefully and without interruption for a period of 20 years.
17. In the instant case it is the admitted position of fact that Derrila Lingdoh having purchased the suit land in the year 1935 has been openly, peacefully and continuously using Schedule-B strip of land for access to Schedule-A land until her death prior to 1982 i.e. for a period more than 20 years. Therefore, Derrila Lingdoh had evidently acquired easement by prescription over the B-scheduled land. The
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usage of words such as “absolute” and “ indefeasible” in section 25 denotes that such right would be conclusive, unconditional and irrevocable in nature.
Therefore, such right accruing to Derrila Lingdoh during her life time over the Schedule-B passage was incidental to her title and interest over the Schedule-A land and hence, would be in the nature of a permanent, inheritable and transferable right.
18. There can be no doubt about the fact that in order to acquire easement by prescription under Section 25 of the Act of 1963, the claimant not only would have to lay down factual foundations in the pleadings but would also have to lead evidence so as to establish the peaceful, open and uninterrupted usage of the said right continuously for a period of 20 years. In the present case the defendant himself has admitted in his evidence that Derrila Lingdoh had been using the Schedule –B strip of land during her life time till her death i.e. prior to the year 1982. The defendant/ respondent has stated in his evidence that he has seen Derrila in the schedule-A land around 1950 and that she was in use of the passage shown in Schedule-B land. It is also admitted by the defendant/ respondent that the Schedule –B land is the only path way to access the Schedule-A land.
19. It is settled law that facts admitted need not be proved. An admission of fact is the best evidence that can be gainfully pressed into service by the opposite side. From the material evidence
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available on record it is found that an easement by prescription within the meaning of section 25 of the Limitation Act 1963 had clearly accrued in favour of Derrilla Lingdoh over Schedule-B land during her life time. Such right having been accrued upon the predecessor-in-interest of the plaintiff’s vendor by operation of law, the said right devolved upon her successors-in-interest after death of Derrilla and eventually stood transferred in favour of the plaintiff on his stepping into the shoes of his vendor upon purchase of the Schedule-A land by means of a registered deed of sale. The right to use the passage in Schedule –B is a bare necessity for the Plaintiff since there is no other access to the Schedule-A land belonging to him. The Plaintiff would, therefore, be entitled to enjoy such easement over Schedule-B passage until his right ,title and interest over the suit land stands extinguished under due process of law .
20. The defendant / respondent has made a veiled attempt to question the validity of the sale transaction by which the plaintiff / appellant had purchased the Schedule-A land. However, since the validity of the registered deed of sale executed on 8-4-1987 is not under challenge in the present proceeding this court is not inclined to go into that aspect of the matter, more so , in view of the fact that the defendant / respondent appears to have already instituted a separate proceeding being Title Suit No 23/1988 before a competent court questioning the Title of the plaintiff/ appellant over the Schedule-A land.
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21. For the reasons stated above, in the facts and circumstances of the case it is held that upon purchase of the Schedule-A land by a registered sale deed, the plaintiff had stepped into the shoes of his vendor and hence, there was no further requirement on the part of the plaintiff/appellant to lead evidence to establish his possession over the Schedule-B land for 20 years in his individual capacity. Moreover, such a plea not having been taken by the defendant/ respondent in the pleadings, he cannot be allowed to urge the same at this stage.
22. In view of the foregoing discussions, it is held that the judgment dated 23.08.2001 and decree dated 31.08.2001 passed by the learned lower appellate court are not sustainable in law and hence the same are hereby set aside. The judgment dated 4-12-2000 and decree dated 21-12-2000 passed by the learned trial court stands affirmed. Consequently, this appeal stands allowed.
Parties to bear their own cost.
Registry may send back the records.
JUDGE
T U Choudhury
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