RSA 56/2011 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGEMENT AND ORDER (ORAL) The appellant herein being the plaintiffs in Title Suit No.2/2007 on the file of the learned Civil Judge (Sr. Division), Nalbari has assailed the judgme nt and decree dated 8.9.2010 and 21.9.2010 respectively passed in Title Appeal N o.22/2007, whereby and whereunder the learned District Judge, Nalbari dismissed the appeal filed by the appellant, thereby affirming the judgment and decree pas sed by the learned Civil Judge (Sr. Division) as indicated hereinabove, which ca me up for hearing before this Court under Order XLI Rule 11 of the Civil Procedu re Code (’CPC’ for short). 2. In order to determine the lis between the parties and the question raise d under heading of ’substantial question of law’ as envisaged under Section 100 of the CPC, a brief fact is summarized hereinbelow: The appellants herein as plaintiffs filed Title Suit No.2/2007 on the fi le of the learned Civil Judge (Sr. Division), Nalbari, praying for the following reliefs against the respondents herein as defendants viz., a) for payment of sum of Rs.3,00,000/- with upto date interest being compensatio n of the land mentioned in schedule ’B’ of the plaint; b) cost of the suit; c) for any other relief to which the plaintiffs are entitled. 3. The basis for seeking the decree in brief is that the plaintiffs are the absolute owner and possessor of a plot of land measuring 2 (two) bighas of vill age Barkura, under Batahgila Mauza, covered by Patta No.138 and also another Pat ta No.135 covered by Dag No.627 of the same village as described in Schedule ’A’ of the plaint. The defendants taking advantage of their absence encroached an a rea of 1K 13L of their patta land for constructing road measuring about 12 feet in breadth and 170 feet in length on their western side of their land as describ ed in Schedule ’B’ of the plaint without paying compensation for the said land. On knowing the above facts they have filed objection before the defendant No.1, Deputy Commissioner, Nalbari for a direction to the Circle Officer to measure th e land and to stop construction of the road immediately, but the same did not yi eld any fruitful result and later on issued notices on 25.07.1997 against the de fendants to stop construction of the road or to pay a sum of Rs.3,00,000/- as co mpensation being the cost of the land. The defendants thereafter sent reply deny ing the liability to pay compensation as demanded and completed the construction of the road. Hence, the suit for compensation. 4. The defendants on receipt of summons have entered appearance and contest ed the suit by filing written statement contending inter alia taking the usual g round of maintainability of the suit, that there is no cause of action for the s uit, that the suit is barred by limitation and bad for non-joinder of necessary parties etc. Their specific plea as averred in the written statement is that the re was an existing road from Kajipara to Barama. The District Rural Development Agency (’DRDA’ for short), Nalbari took a scheme for repairing the said road und er Employment Assurance Scheme 1996-97 on public demand and as per approval of t he then Minister of Veterinary, Assam and Local MLA of Nalbari L.A.C. and after observing all formalities, the local people of the village Barkura executed the scheme for repairing the existing road under the supervision of APO (P), J.E. of DRDA, Nalbari and developed the road by earth filling with the help of local la bours and there was no protest from the plaintiffs during the construction. As t here was an existing road the question of ownership of the land as claimed did n ot arise and therefore, no permission from the plaintiffs required. Hence, praye d for dismissal of the suit. 5. Upon the pleadings of the parties, the learned trial Court framed the fo llowing issues- 1. Whether there is cause of action of the suit? 2. Whether the suit is maintainable? 3. Whether the suit is barred by limitation? 4. Whether the suit is bad for non-joinder of necessary parties? 5. Whether the road as alleged by the plaintiffs was constructed after observing due formalities of acquisition of land? 6. Whether the defendant nos. 2, 3 and 4 developed the existing road over the la nd of the plaintiffs as alleged in written statement? 7. Whether the plaintiffs are entitled for the compensation for encroachment of the land for the road as alleged in the plaint? 8. To what relief/reliefs the parties are entitled? 6. The parties to the suit went for trial claiming their respective claims and in the process the plaintiffs have examined three witnesses and exhibited ce rtain documents in support of their claim and the defendants have examined four witnesses. 7. The suit was decreed in favour of the plaintiffs and on appeal the learn ed District Judge remanded the case for fresh disposal after giving the parties to adduce their evidence in support of their respective claims. On remand the pl aintiffs examined one witness Shri Pankaj Kumar Dutta being the Lat Mondal of Ba tahgila Mouza by submitting one site map which would be referred at appropriate stage. 8. The learned trial Court after evaluating the depositions of the witnesse s adduced during trial came to the conclusion that the plaintiffs have failed to prove that the defendants constructed the alleged road only in 1997 and that th ere was no road prior to 1997. They have failed to adduce evidence in regard to alleged encroachment upon the land belonging to the plaintiffs. The learned tria l Court considered the evidence of PW 4, Pankaj Kumar Dutta, the Lat Mandal of B atahgila Mouza who was examined after remand as PW 4. The trial Court further co nsidered the site map of Balikoria village (Ext-6), exhibited by PW 4 to show th at there was no road in the map on the Dag Nos. 627, 628, 636 and 635 of the all eged patta. PW 4 has also stated that there was no proposal from any authority w ith regard to construction of any road in between the abovementioned Dags. In Ex t-6, the map of the suit land, it was mentioned that this map was made under th e authority of the Govt. in the year 1884-85 corrected upto 1959-60 . The presen t case relates to the year 1997 and thus the said map would not show any road ov er the suit land which was corrected upto 1959-60. The court thereafter examined Smti Nadera Jesmin, Circle Officer, Nalbari as court witness being CW 1, who d eposed that the village road was found but there was no such road in the revenue map and the road might be 20/25 years old in use and could know it by enquiring the people of the locality. There was no alternative road for the people of the locality and the road had been used by the people of the locality. However, the plaintiffs have failed to examine any of the people of the locality though thei r names viz., Hareswar Barman, Hemanta Barman, Dilip Sarma was mentioned by PW 3 as well as the Gaonburha as mentioned by PW 2. On the above grounds, the trial Court dismissed the suit of the plaintiffs. 9. The plaintiffs took up the matter on the file of the learned appellate c ourt and the learned appellate court after considering the evidence of PWs, DWs and CW 1 found that there is a road and that road has been using by the public, inasmuch as, PW 4 had stated that he does not know actually over which land the road is constructed and actually there is no demand to halt construction from th e plaintiff side at the time of constructing the road while the land of the plai ntiff has been trespassed and encroached. CW 1 also has stated that the said roa d is about 20/25 years old and she finds out the same by enquiring the people of the said locality and as per the record of the revenue the sketch map of the sa id land in question was prepared in the year 1884/1885, which shows that there i s a road from Kajipara to Barama road since 1884/1885. The appellate court, ther efore, affirmed the judgement and decree of the learned trial Court thereby dism issed the appeal and hence, this regular second appeal. 10. Heard Mr. BD Goswami, learned counsel appearing for the appellants. Peru sed the materials available on record. 11. The plaintiffs/appellants have now questioned the validity of the judgme nt and decree passed by the learned courts below invoking power under Section 10 0 of CPC by formulating the following substantial questions of law; I. Whether the findings of the learned courts below are perverse inasmuch as th e PW 4 (Lat Mandal) in his evidence specifically states that there is no village road over the suit land and there is no proposal for construction of any road i n the suit land and the CW 1 (Circle Officer) in her evidence specifically state s that the plaintiffs/appellants are the recorded pattadars of the suit land and there is no land documents for acquisition of the land in question and no propo sal for construction of road in the suit land? II. Whether the learned courts below erred in law in passing the impugned judgem ent and decrees vis-à-vis the factual position that the defendant No. 2 had cons tructed the road in question over the land of the plaintiffs/appellants by encro achment and not by resorting to any of the procedure laid down by law. III. Whether the learned courts below committed illegality in passing the imp ugned judgments and decrees without considering the exhibit 6 (Original Map) whi ch clearly shows that there was no road over the suit land or in the adjoining D ags prior to the construction of the disputed road in the year 1997? 12. Considered the arguments advanced by Mr. Goswami. The law formulated as substantial questions of law relates to evidence of PW 4 (Lat Mandal) coupled wi th the evidence of CW 1, which has been dealt with extensively by both the court s below. The scope of interference with the concurrent findings of fact in exerc ise of power under Section 100 of CPC is very limited, more so, when the learned courts below have dealt with the matter elaborately. The scope of Section 100 o f CPC came up for consideration before this Court in the cases reported in (2004 ) 3 GLR 116 (Upendra Kumar Mazumdar Vs. Tapan Mazumdar & Ors.), (2004) 3 GLR 239 (Rita Das & Anr. Vs. Girindra & Ors.) and (2004) 3 GLR 397 (Anjali Debi Thapa & Ors. Vs. Sandhya Debi Thapa) wherein this Court has held that findings of fact not open to challenge even if the appreciation of evidence is palpably erroneous . Sufficiency or adequacy of evidence to support a finding of fact is a matter f or decision of a court of fact and the High court would not interfere with the f indings of fact arrived at by both the courts below which this Court hereby do. 13. For the reasons stated hereinabove, I do not find any substantial questi on of law involved to be adjudicated upon. Consequently thereupon no interferenc e is called for in exercise of power under Section 100 of the CPC. 14. In the result, the regular second appeal stands dismissed. No costs.