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Enjoyment of easement right not subject of interruption

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22nd-Jul-2017       
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Appellate Division :
(Civil)
Md Abdul Wahhab Miah J
Md Imman Ali J
Judgment
April 29th, 2015
Shamsul Huq Molla .... Appellant
vs
Shunil Chandra Biswas     ........ Respondent
 Easement Act (V of 1882)
Section 15
The requirement of the law is that in establishing the right of easement it has to be shown that the right was openly enjoyed as an easement, and as of right, without interruption for 20 years and the period of 20 years shall be taken to be a period ending with interruption of the enjoyment of the easement right when the cause of action arises and the suit is to be instituted within 2 years from the date when the cause of action arises. . ..... (16)
AB Siddique, Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Appellant.
Md Nawab Ali, Advocate-on-Record-Respondents No.2 (absent).
Judgment
Md Imman Ali J : This Civil Appeal, by leave, is directed against the judgment and order dated 20-5-2001 passed by a Single Bench of the High Court Division in Civil Revision No. 1563 of 1998 making the Rule absolute.
2. The facts of the case, in brief, are that the appellant as plaintiff filed Title Suit No. 56 of 1994 for declaration of his easement right over the suit property stating, inter alia, that he acquired 0.17 acre of land, which has now been recorded as RS Dag No. 1267 by kabala dated 26-9-69 and after constructing his dwelling house he had been living therein. In order to use and access the pucca road of Battala, Gopalgonj Town, he as well as his predecessor used the pathway on foot which went through the southern side of plot No. 1251 of the defendants which stands on the eastern side of the plot of the plaintiff and then using the Government Halat (i.e. access pathway) situated on plot Nos. 1263, 1256 and 1257. The said pathway was in existence for more than 50 years. The said pathway over the southern side of plot No. 1251 is about 3 to 4 cubits wide and the plaintiff further stated that this pathway has been the only convenient access on foot to the pucca Battala Road from his plot. The defendants with ulterior intention of grabbing the Halot on the plots No. 1263, 1256 and 1257, started raising wall on 1/2 decimal of land on plot No. 1251 which was situated on the entrance to the aforementioned pathway. Despite repeated objections from the plaintiff, the defendants continued with the construction. Thereafter, the plaintiff applied to the local Chairman on 16-6-1993 and 24-7-1993 to settle the matter, but the Chairman failed to ensure the attendance of the defendants and, as such, no settlement was reached. Finally, the plaintiff requested the defendants on 20.9.1993 to stop the ongoing construction of the wall on the entrance to the pathway, which they' refused, and threatened dire consequences if the plaintiff and his family members did not stop using the pathway. As a result, the access to and from the plaintiffs plot No. 1267 was blocked from all sides and the dwelling of the plaintiff became uninhabitable. Being aggrieved by the ongoing construction of wall by the defendants, the plaintiff filed Title Suit No. 56 of 1994 seeking declaration of right of way over the disputed plot No. 1251 belonging to the defendants. During trial, the plaintiff moved an application for amendment of the plaint and stated that despite an injunction, the defendants were still continuing with the construction of the wall and had constructed a latrine and prayed to the Court for a direction upon the defendants to demolish the wall, otherwise the plaintiffs property would be landlocked and for this reason the plaintiff has filed this suit.
3. The defendants-respondents contested the suit by filing joint written statement contending, inter alia, that plot No. 1268 is situated on the western side of the plaintiffs plot No. 1267 and the road to Pourashava is situated on the western side of the said plot No. 1268 and if the plaintiff got possession of some land to the north of Plot No. 1268 amicably from the co-sharers, he would have access to the town. The defendants further stated that the plot No. 1251 situated to the cast of the plot No. 1267 comprises an area of 0.06 acre of land and the defendants have been living therein by constructing dwelling hut since the time of their predecessor, and the dispute arose between the plaintiff and the defendants regarding boundary of plots No. 1267 and 1251 and then after necessary survey, the defendants raised wall between the said plots long ago and there was no vacant land in the southern side of plot No. 1251 and there was also no mention of Halot in the CS Khatian in respect of 0.01 acre of land against each of the plot Nos. 1256, 1257 and 1263 and those plots were never used as public Halot. The defendants further stated that an area of 3 cubits width is lying vacant from east to west on the southern part of plot No. 1268, which connected the Pourashava Road, situated at plot No. 1270, and the plaintiff had been using the said vacant land as passage till the filing of the suit.
4. After hearing the parties and considering the materials on record the learned Assistant Judge, Gopalgonj, decreed the suit in favour of the plaintiff.
 5. Against the said judgment and decree, the defendants filed Title Appeal- No. 136 of 1997 before the learned District Judge, Gopalgonj, who after hearing dismissed the appeal and upheld the judgment and decree passed by the trial Court.
6. Being aggrieved by the said judgment and decree of the appellate Court the defendants filed Civil Revision No. 1563 of 1998 before the High Court Division and obtained Rule.
7. Upon hearing the parties and considering the materials on record, by the impugned judgment and order, the High Court Division made the Rule absolute. Hence, the plaintiff as petitioner filed Civil Petition for Leave to Appeal No. 70 of 2002.
8. Leave was granted on the following submissions of the learned Counsel appearing for the petitioner:
 (1) The High Court Division failed to appreciate the provision of Section 15 of the Easements Act, 1882 (Act V of 1882) in holding that the suit is barred by limitation. The attention of the Court was drawn to the fact that Section 15 of the Easements Act, 1882 and Section 26 of the Limitation Act, 1908 are two similar provisions, both of which deal with acquisition of right by easement and both of the said provisions provide that the 'period 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 is contested.' The provision is interpreted to mean that one should bring a suit within 2(two) years of interruption of his enjoyment (distinct from actual user) of easement right.
(II)     The High Court Division failed to take into consideration Section 23 of the Limitation Act, which provides that a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues de die in diem, And it is a settled principle that infringement of right of way is a continuous wrong as it constitutes a continuous nuisance. Therefore, the High Court Division erred in law in holding that the suit was barred by law; and
(III)    The High Court Division erred in law and on facts by misconstruing the evidence of the plaintiffs witness (PW 1) (the petitioner himself) given in the trial Court and holding that the cause of action arose in 1990 and that the plaintiff should have instituted the suit within 2 years. However, the High Court Division failed to notice the fact that the trial Court in its judgment dated 26-8-1997 stated that the plaintiff, by way of amending his plaint, affirmed that the defendants were still continuing with the construction of the wall despite injunction of the Court and had built a pucca latrine. The defendants did not controvert at all, or failed to submit enough evidence to controvert such assertion of the plaintiff and, as such, the statement of the plaintiff was deemed to have been accepted by the defendants. This fact signifies that the construction of the wall was a continuing action and continued up to year 1994 as well. Moreover, the High Court Division failed to take notice of the fact that the plaintiff continued to request the defendants to stop construction of the wall and that every instance of refusal by the defendants constituted a fresh cause of action. Furthermore, the plaintiff asserted his right to way by way of applying to the local Chairman on 16-06-1993 and 24-7-1993 requesting his intervention to solve the dispute and such action constitutes exercise of enjoyment of the right of way by the plaintiff in the eye of law. In addition to the above, the plaintiff alleged that finally on 20-9-1993 he requested the defendants to stop construction of the wall on the entrance of his right of way, which signifies that the construction of the wall was still continuing and the plaintiff was still exercising/ enjoying his right of way and that the defendants have not adduced sufficient evidence during the trial to controvert such facts. Therefore, with every instance of refusal by the defendants to allow the plaintiff to exercise his right of way amounted to a fresh cause of action under Section 23 of the Limitation Act and, therefore, evidently, the suit is not barred by law."
9. Mr AB Siddique, learned Advocate appearing on behalf of the appellant made submissions in line with the grounds upon which leave was granted. The learned Advocate further elaborated his submissions by referring Section 15 of the Easement Act and also Section 23 of the Limitation Act. He also pointed out that no argument was made or ground taken by the defendants with regard to limitation. Referring to the evidence of DW 1, he pointed out that it was admitted in the cross examination of defendant No.2, who deposed as DW 1 that when he was constructing the wall, the plaintiff raised objection and also filed an application before the Chairman. He also pointed out that the application dated 16-6-1993 made by the plaintiff before the Chairman was exhibited as evidence and, therefore, there was no question of the suit being barred by limitation.
10. Mr Md Nawab Ali, learned Advocate-on-Record who had entered appearance on behalf of the respondent No.2, was absent when the appeal was taken up for hearing.
11. We have considered the submissions of the learned Advocate appearing for the appellant, perused the impugned judgment and order of the High Court Division and other connected papers on record.
12. We find from the judgment of the trial Court that the evidence of the witnesses was elaborately discussed. The learned Judge also observed that the RS Porcha exhibit-'Ka' -'Ka'(2) showed a Halot comprising 1 decimal of land of plot Nos. 1256, 1257 and 1263. He also referred to the report of the Advocate Commissioner which indicated that the disputed land was used by the defendants as a private path till the present day. Upon discussion of the evidence, facts and circumstances the learned trial Judge decreed the suit.
13. The appellate Court referring to paragraph 7 of the written statement of the defendants, observed that the plaintiffs had no way of movement to the road which leads to the town via plot No. 1268. We may note at this juncture that the written statement of the defendants referred by the appellate Court only indicates that a pathway to the road going to the town would only exist if the plaintiff came to an arrangement with co-sharers of plot No. 1268.
14. We find from the judgment of the appellate Court that an issue on the point of limitation, maintainability of the suit, and defect of parties was framed by the trial Court, but the defendants did not raise those issues at the time of trial of the case, and at the time of hearing of the appeal also they did not press those issues. We note from the revisional application filed before the High Court Division that there was no ground taken with regard to limitation. Hence, it was not proper on the part of the High Court Division to reverse the concurrent findings of the trial" Court and the appellate Court upon finding that the suit was barred under Section 15 of the Easement Act.
Section 15 of the Easement Act, provides as follows:
15. Where the access and use of light or air to and for any building have, been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
and where support from one person's land or things affixed thereto has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,
'and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, an easement, and as of right, without interruption, and for twenty years,
the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty 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 is contested.
15. The High Court Division took the view that since the suit was not filed within two
years from 1990, i.e. when the wall was erected by the defendants, the suit is barred.
16. In our view the finding of the High Court Division is quite erroneous. The requirement of the law is that in establishing the right of easement it has to be shown that the right was openly enjoyed as an easement, and as of right, without interruption for 20 years and the period of 20 years shall be taken to be a period ending with interruption of the enjoyment of the easement right when the cause of action arises and the suit is to be instituted within 2 years from the date when the cause of action arises.
17. In the facts of the instant case the construction of the wall was commenced in 1990 and continued as late as 1993 when, as admitted by DW1 in his cross examination, the plaintiff filed an application before the Chairman having objected to construction of the wall. The application was dated 16-6-1993. We are told about another application on 24-4-1994. So, in view of facts referred above, we do not find that the suit was in any way barred by limitation. On the other hand, the RS Porchas exhibited in the case clearly show that there is a recorded pathway across plot Nos. 1256, 1257 and 1263. In such view of the matter, the trial Court and the lower appellate Court have rightly found that the plaintiff proved a case of easement right and the suit was correctly decreed .. Clearly the impugned judgment is erroneous both in facts and on law.
18. In the light of the discussion above, the appeal is allowed, however, without any order as to costs.
The impugned judgment passed by the High Court Division is hereby set aside.

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