RSA 61/2010 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY ORDER (ORAL) Heard Mr. C.K.S. Baruah, the learned counsel for the appellants and Mr. P. Roy, the learned counsel appearing for the respondents. [2] This appeal by the defendants is directed against the judgment a nd decree dated 10th November, 2009 passed by the learned Civil Judge, Karimganj in Title Appeal No.26/2007 dismissing the appeal by affirming the judgment and decree dated 26th March, 2007 passed by the learned Munsiff, No.2, Karimganj in Title Suit No.143/1997 decreeing the suit of the respondents/ plaintiffs. [3] The respondents herein as plaintiffs, instituted Title Suit No.1 43/1997 in the Court of the learned Munsiff, Karimganj claiming declaration that the path described in Schedule 1 to the plaint is the only entrance path toward s homestead of the plaintiffs; that the principal defendant Nos.1 to 5 are bound to remove the construction existing over the Schedule 2 land, which is part of the Schedule 1 path; that the plaintiffs are the bonafide user of the path descr ibed in Schedule 1 and the principal defendants are not entitled to create any o bstruction in any manner whatsoever in using the said path and that the principa l defendants are not entitled to create cloud over the bonafide right, title and interest and possession over the path described in Schedule 1, apart from prayi ng for the mandatory injunctions contending inter alia that the land described i n Schedule 1 of the plaint alongwith other land was initially purchased by Shefa li Rani Roy Karmakar, wife of the plaintiff No.1 alongwith Charu Bala Dutta, mot her of the defendant Nos.1 to 5 from one Smti. Sushila Bala Das, by a registered deed of sale dated 12th June, 1958 and thereafter, there was a mutual partition and accordingly the plaintiffs have enjoyed their portion of the land and the d efendant Nos.1 to 5 were enjoying their portion of the land. It has further bee n contended that the path, which is described in Schedule 1 has been enjoying by both the plaintiffs and the defendants for last more than 38 (thirty eight) yea rs and which is the only ingress and egress to the plaintiffs’ land but the defe ndant Nos.1 to 5 encroached upon the part of the Schedule 1 path, which portion has been described in Schedule 2, and thereafter, got the name mutated in respec t of the said land by the defendant Nos.1 and 2 surreptitiously, after raising c ertain constructions. The plaintiffs, therefore, filed the suit for declaration, as noticed above. [4] The defendant Nos.1 to 5, the present appellants, contested the suit by filing the joint written statement admitting the purchase of the land by registered deed of sale dated 12th June, 1958 by their mother and the wife of t he plaintiff No.1 and also about the amicable partition amongst them. It has, h owever, been contended in the written statement that the plaintiffs never used t he Schedule 1 land as the path, as contended in the plaint and that apart there are other paths leading to the plaintiffs’ land. [5] The learned Trial Court on the basis of the pleadings of the par ties framed the following issues for consideration and decision:- a) Whether there is any cause of action of the suit? b) Whether the suit is maintainable in its present form? c) Whether the suit is barred by estoppel, waiver and acqui escence? d) Whether the suit land barred by law of limitation? e) Whether the suit is bad for defect of parties? f) Whether the suit is bad for non-service of notice u/s 80 of CPC? g) Whether the plaintiffs are entitled to get a decree as p rayed for? h) Whether the plaintiffs are entitled to get a decree as p rayed for? i) Any other relief(s) to which the parties are entitled un der law and equity? [6] The plaintiffs in support of their claim have examined 1 (one) w itness while the defendants examined 3 (here) witnesses. Both the parties have also proved certain documents, which are marked as Exhibits. [7] The learned Trial Court, upon appreciation of the evidences on r ecord has decreed the suit in favour of the plaintiffs against which, though Tit le Appeal No.26/2007 was filed by the present appellants, the same has also been dismissed. [8] It has been contended by Mr. Sarma Baruah, the learned counsel f or the appellants that since the plaintiffs claimed easementary right over the p ath, in view of the provisions contained in Section 25 of the Limitation Act, 19 63, they are required to prove that the said path has been used by them for last 22 (twenty two) years which, according to the learned counsel, could not be pro ved by the plaintiffs and as such, the substantial question of law, which arises for consideration in this appeal is - whether the learned Courts below were jus tified in decreeing the suit of the plaintiffs even without recording any findin g relating to the length of use of the path described in Schedule 1, though unde r Section 25 of the Limitation Act, such user must be for 22 years for the purpo se of acquisition of easement by prescription. [9] Mr. Roy, the learned counsel appearing for the respondents/plain tiffs, on the other hand, referring to the findings recorded by the learned Cour ts below has submitted that the finding has been recorded to the effect that the plaintiffs are using the Schedule 1 land as a path for last more than 40 (forty ) years and, therefore, the period of use for acquisition of easementary right b y prescription, as stipulated in Section 25 of the Limitation Act has been fulfi lled though the learned Courts below did not mention the provisions of Section 2 5 of the Limitation Act. [10] I have considered the submissions of the learned counsel for the parties and also perused the judgment and decree passed by the learned Courts b elow. [11] It is evident from the judgment and decree passed by the learned Trial Court that a specific finding relating to the use of the Schedule 1 land by the plaintiffs as well as by the defendants has been recorded. It is found, on the basis of the evidences on record, that the said land has been used by bot h the parties as path for more than 40 (forty) years. Such finding of fact has been upheld by the learned First Appellate Court after discussing the evidences as adduced by the parties. A finding of fact has also been recorded by both th e learned Courts below that the path (Schedule 1) is the only path for ingress a nd egress to the land of the plaintiffs. The relevant portion of the said judgme nt of the first Appellate Court is quoted below:- Apart, the evidence on record shows that the alleged alternate passage of the plaintiffs is nothing but passage over a drain covered on its by plate and not a path. Moreover, the evidence of PW-2 shows that he using the pat h since childhood and plaintiffs also using it since last 40 years, which suppor ts the evidence of PW-1, that this suit path is the only way for coming in and g oing out to their shops from their house. As such it is evidence that the plain tiff have rightful claim of user over the suit path alongwith the defendants. As such, it is evidence that the suit path of schedule 1 is the only entrance path towards homestead of plaintiffs and the plaintiffs are bonafide user of this pa th and they have equal right to get their names recorded in the record rights in respect in respected of the suit land (Suit Path). [12] Such finding relating to the length of use of Schedule 1 land by the parties to the suit for about 40 (forty) years is a finding of fact. Thoug h the learned Courts below did not mention the provisions of Limitation Act, i.e . Section 25, the effect of such a finding recorded by the learned Courts below is that the conditions stipulated in Section 25 of the Limitation Act, has been fulfilled. [13] In view of the above, no substantial question of law is involved for admission of the appeal and hence, the same is dismissed. [14] No cost.