RSA 135/2011 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) Legality and validity of the judgment and decree dated 03.02.2011 passe d in Title Appeal No. 46 of 2005 by the Civil Judge, Karimganj dismissing the a ppeal preferred by the defendants in the suit thereby affirming the judgment and decree dated 28.07.2005 passed in Title Suit No. 229 of 2003 by the Civil Judge (jr. Div.) No. 2 Karimganj has been called in question in this regular second a ppeal invoking power under Section 100 of the Code of Civil Procedure (in short the ’Code’). 2. The substantial questions of law as formulated reads as follows: a) Whether the judgment of the learned Courts below holding that Sc hedule II land is an ejmali path is sustainable in view of the clear statement m ade by the plaintiff no. 2 as P.W. 1 in his cross-examination that the defendant s are the owners of the suit path which is the schedule II path? b) Whether in absence of any evidence in the form of documents to s how that the suit path is ejmali as admitted by P.W. 3 in his cross-examination, the findings of the learned Courts below holding the same to be ejmali is susta inable? c) Whether in view of the registered agreement dated 27.05.1969 which has b een mentioned by the P.W. 3 in his cross-examination wherein the plaintiff No. 1 agreed that the path for egress and ingress to the homestead of the plaintiff n o. 1 was in existence on the western side of the house, the impugned judgment ho lding the suit path is ejmali are sustainable in law? 3. To ascertain as to whether the points raised are substantial questions o f law, the pleadings of the parties, the evidence on record including the judgme nt rendered by both the Courts below in a nutshell are mentioned in the followin g paragraphs. 4. The respondents, herein, as plaintiffs have brought a suit being Title S uit No. 229/2003 in the Court of Civil Judge (Jr. Div.) No. 2 Karimganj seeking the following relief: - i) For declaration that the plaintiffs are entitled to use the 2nd schedule mentioned suit path jointly with the pro forma defendant Nos. 5 to 9 and the pr incipal defendants. ii) For declaration of plaintiff’s right over the suit path acquired through common practice and prescription easement. iii) For declaration that principal defendants are not the owners of the suit path. iv) For declaration of ejmali title over the 1st Schedule suit land in land holder right of plaintiff No. 1 and pro forma defendant nos. 5 to 8 and confirma tion of their joint possession therein. v) For permanent injunction restraining the principal defendants from creat ing any obstruction over the suit path (2nd schedule) or any part of it in any m anner whatsoever and also from creating any disturbance in the progress of const ruction of drain over the 1st schedule suit land. vI) For awarding full cost of the suit. vii) For such other order or further relief as may be deemed fit and proper. 5. The basis of such declarations rests on the following pleadings made in the plaint; The plaintiff No. 1 purchased a plot of land from pro forma defendant No. 3, Ab dul Muktadir Choudhury vide registered deed no. 6514 of 1969 which is situated in the North West of the Second Schedule suit land and is possessing the same b y constructing residential house therein. The plaintiff has left out an area of one cubit (east-west) from the eastern side for the purpose of construction of a water outlet drain on the west of second schedule part which has been in exist ence at the time of such purchase. The western 50% of the second schedule path b elonged to pro forma defendant No. 3 and the rest eastern part belonged to one M d. Asaddar Ali Choudhury. The second schedule thus constitutes a path measuring 3 cubits in breadth from east to west and 260 cubits in length from north to sou th. On the south of the purchased land pro forma defendant Nos. 5 to 8 are poss essing their homestead land and they also left out one cubit of land from wester n side for the purpose of construction of water outlet drain. The plaintiff No. 2 has also purchased a plot of land situated on the east of 2nd Schedule pat h vide registered deed No. 683 of 1986 and has been residing therein by construc ting residential house whereas the principal defendant No.1 took settlement of a plot of land from Asaddar Ali Chouhury vide lease deed No. 2299 of 1964 and t he said land is situated on the extreme north east of 2nd schedule path. The pa th is used as ejmali by pro forma defendant Nos. 3 and 4 and the predecessor of pro forma defendant Nos. 10 and 11 and subsequently by plaintiffs, pro forma def endant nos. 5 to 9 and the principal defendants are using the said path as of common practice as path for ingress and egress to their respective homestead b eyond the period of 30 years without any interruption. The plaintiffs along with pro forma defendant Nos. 5 to 9 for free passage of water left out the 1st Sch edule land for construction of a drain agreed to develop and construct the suit path on 18.05.2002 and to hand over the same to Karimganj Municipality for furth er development. It has been further averred that when the construction was started the d efendant no. 1 lodged an FIR with police on 04.05.2003 on some false allegations against the plaintiff No. 1 and his sons and others which was registered as Mis c. Case No. 303/2003 under section 144 of the Code in the Court of Executive Mag istrate claiming the suit path as their own. The pleaded facts disclosed that th e defendants without being the owner of the suit path trying to obstruct the pla intiffs along with pro forma defendant Nos. 5 to 8 from constructing drain over 1st schedule land and hence the suit seeking the decree as indicated above. 6. The Principal defendant who is appellant before this Court had entered a ppearance and filed the written statement which however was filed beyond the pre scribed period and the learned Court below vide order dated 13.08.2004, rejected the same and the suit proceeded ex parte against them. However the defendants w ere allowed to cross-examine the witnesses of the plaintiffs. 7. In the suit no issue was framed in absence of pleadings of the principal defendants. The plaintiffs have examined three witnesses and the witnesses were cross-examined by the defendants’ side. The plaintiffs have also exhibited some documents. The Ext. 1 as has been proved by the plaintiff No. 1 relates to sale deed no. 6514 of 1969 which would show that the second schedule boundary of the Ext 1 was in existence of a path bearing 3 cubits in breadth on the eastern sid e and the pleaded facts are proved. It has also been proved by PW 1 that 50% of the path belongs to the vendor of plaintiff no. 1 and the remaining area belon gs to Md. Asaddar Ali Choudhury, the lessor of the principal defendants. Moreove r, it is averred in the plaint that the plaintiff no. 2 purchased a plot of land situated on the east of the second schedule path from one Sushil Sikdar vide re gistered deed no. 683 in the year 1986, whereas, the principal defendants took s ettlement of a plot of land from Asaddar Ali Choudhury being registered document no. 2299 of 1964 and the land is situated on the extreme north east of the seco nd schedule suit path. The sale deed of PW 2 would show that he purchased an are a of land measuring 5 josti 14 pon 13 gonda and 3 kora from Sushil Sikdar which has been proved vide Ext-3. The boundary of Schedule of Ext-3 shows a road in th e western side and the purchased land of the plaintiff no. 2 is situated on the east of the second schedule path. In the suit Nazrul Islam is examined as PW 3 w ho has deposed that the suit path is used by both the plaintiffs and the princip al defendants. PW 3 has further deposed that the path personally belonged to Abd ul Muktadir Choudhury, Abdul Matin Choudhury and Asaddar Ali Choudhury in ejmali and he has seen the path for the past 20 years. However no documentary evidence was produced to establish that the path is an ejmali but it was also not proved that there was no path. 8. From the evidence available on record the learned trial Court has held t hat there exists a path and accordingly holds that the plaintiffs are entitled t o get a declaration to the effect that the second schedule path is an ejmali pa th and they are entitled to use the same along with pro forma defendant Nos. 5 to 9 and the principal defendants and decreed the suit partly holding that th e second schedule path described in the suit is an ejmali path holding the plai ntiffs alongwith pro forma defendants Nos. 5 to 9 and the principal defendants are entitled to use the same in ejmali. 9. Being aggrieved with the judgment and decree rendered by the learned tri al Court the principal defendants took up the matter in appeal before the learne d Civil Judge, Karimganj wherein only argument advanced was for remanding the su it for retrial since the matter was proceeded ex parte. But the learned Appellat e Court rejected the prayer by holding that since the order which proceeded ex p arte was not assailed by the appellants in any manner at the relevant time, it attained its finality and the judgment delivered by the learned trial Court can not be interfered with in absence of any pleadings or evidence adduced by the ap pellants, more so, when the suit decreed partly declaring that the 2nd schedu le path described in the plaint is an ejmali path holding that the plaintiffs a long with pro forma defendant nos. 5 to 9 and the principal defendant/appellant is entitled to use the same in ejmali is found to be an order common to both the parties for their use and as such it cannot be in any way to be interfered with . 10. Against the judgment and decree passed by the learned lower appellate Co urt affirming the judgment and decree passed by the learned trial Court the prin cipal defendant has preferred this regular Second Appeal before this Court and, accordingly, it came up under the heading of Order XLI Rule 11 of the Code. 11. Heard Shri SK Medhi, learned counsel appearing for the appellant. Shri M edhi argued at length relating to error committed by both the Courts below in de creeing the suit, referring the evidences of PW 2 and 3 wherein PW 2 has admitte d that the principal defendants are the owners of the suit path and there is no document to prove that the suit path is an ejmali as deposed by PW 3 which requi re interference under Section 100 of the Code. 12. The Court, however, has drawn the attention of the learned counsel relat ing to the judgment delivered by the learned appellate Court wherein save and ex cept for remanding the suit for retrial no other argument was advanced, and ther efore the counsel is precluded from raising the issue raised in the appeal, more so, when the substantial questions of law as formulated are not substantial que stion of law. 13. Jurisdiction of High Court under Section 100 of the Code is confined onl y to such appeal which involved a substantial question of law and it does not co nfer any jurisdiction on the High Court to interfere with pure questions of fact while exercising power under section 100 of the Code. Admittedly the suit proce eded ex parte and it attained its finality. In absence of any pleadings by the a ppellants in the trial, both the Courts below, therefore, have rightly decreed t he suit. The instant appeal filed against the concurrent findings of fact and th e Court is not inclined to interfere with the judgment and decree passed by the learned Courts below and the law formulated being not the substantial questions of law, the appeal do not require to be interfered with under section 100 of th e Code. 14. In the result, the appeal has no merit and accordingly the same is dismi ssed. No costs.