IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

PRESENT:

THE HON’BLE DR. JUSTICE AJOY KUMAR MUKHERJEE

C.O. 3777 of 2024

Sri Basudev Das & Ors.

Vs.

Smt. Gita Rani Deb

For the Petitioner : Mr. Gopal Chandra Ghosh

Mr. Rajkrishna Mondal

Ms. Sunanda Saha

For the opposite party : Mr. Nilendra Narayan Ray

Heard on : 21.04.2026

Judgment on : 04.05.2026

Dr. Ajoy Kumar Mukherjee , J.:

1. The subject matter of challenge in the instant Revisional Application,

preferred at the instance of the petitioners is the order dated 23

rd August,

2024 passed by learned Additional District Judge, Haldia in Misc. Appeal

no. 20 of 2024, by which the court below has dismissed the said appeal

and modified the order dated 15

th January, 2024 passed by learned Civil

Judge (Jr. Divn.) Haldia in T.S. no. 46 of 2020.

2. The petitioner’s case is that they were owners of land measuring

1acre 12 decimal in plot no. 155/440 out of total 1acre 38 decimal and the

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residue 26 decimal was under their Barga cultivation. Thus, the petitioners

were in actual physical possession of the entire 1 acre 38 decimal of land.

Thereafter the petitioners sold 50 ½ decimal from said plot to plaintiff Gita

Rani Dev on 11.08.2022 being 48 decimal on the western side and 2 ½

decimal in the middle eastern portion. The opposite party herein as plaintiff

claims her right to approach the public road at plot no. 122 through a strip

of land measuring 132 ft. (“BaramPath” in colloquial term) mentioned in

“ka-1” schedule in the said suit schedule and also prays for a permanent

injunction over the said passage against the petitioners. The main point of

controversy is whether there was any arrangement for plaintiff’s ingress

and egress to reach their portion through that Baram Path, which

defendants allegedly blocked.

3. Learned Civil Judge (Junior Division) allowed the plaintiff/opposite

party’s injunction application with the following observation:-

“plaintiff and defendants are directed to maintain status quo with regard to

the nature, character and their respective possession over the “Ka” Schedule

property to the plaint till disposal of the suit”.

4. The said order passed by the trial court was assailed before the

appellate court who modified the order with the following observation:-

“The impugned order dt. 15.01.2024 passed by ld. Civil Judge (Jr. Div.)

Haldia in T.S. No. 46 of 2020 is modified to the extent that both parties are

directed to maintain status-quo in respect of narrow path in suit plot Nos.

154 & 155/440 which leads to the land of the plaintiff (‘ka’ schedule

property) in plot No. 155/440 from the public road. Defendants are hereby

directed not to prevent the plaintiff from using the narrow pathway(‘ka/1’

schedule property) which is situated on the extreme North of suit plot

No.154 & 155/440 for the purpose of her cultivation. At the same time, I

also make it clear that the plaintiff shall use the said narrow path only for

the purpose of cultivation in respect of her land in suit plot No. 155/440.

Accordingly, the impugned order dt. 15.01.2024 passed by ld. Civil Judge

(Jr. Div) Haldia is hereby modified. The order of temporary injunction in the

form of status-quo shall remain in force till the disposal of Title Suit No. 46

of 2020.”

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5. Being aggrieved by the aforesaid order, Mr. Gopal Chandra Ghosh,

learned Counsel on behalf of the petitioners submits that both the courts

below have been misled by the expression ‘Barampath’ but have not

considered the commissioner’s report and the sketch map in its proper

perspective, because it has been clearly mentioned in the report that the

said narrow passage is only within the defendant/petitioners’ property

wherein they have cultivated various vegetables and the path is meant for

collecting vegetables by them and is not extended to the portion of land of

plaintiff/opposite party herein in the west.

6. He further submits that though plaintiff in her plaint has made out a

case that from the date of purchase of the “ka” schedule property from the

defendants, she has been using the said so called path till date as used by

her predecessors viz, her father in law and her husband but from the title

deed by which the defendants/petitioners have purchased the suit

properties in 2002 from the plaintiffs husband, Manoj Kumar Dev, there

appears to be no recital nor any map annexed to show that there was any

ever existence ever of the suit passage (barampath) as claimed by the

plaintiff opposite parties.

7. Moreover, title deed of the plaintiff/opposite party by which she

admittedly purchased the suit property in turn from the defendants/

petitioners, dated 11.06.2022 does not show either in the recital or in the

sketch map, attached thereto any trace of such “barampath”. Therefore

the basis of the plaint case that there exists pathway over ‘ka-1’ schedule

as claimed in the plaint does not have any leg to stand and as such she is

not entitled to get any order of injunction.

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8. Mr. Ghosh further submits that though plaintiff/opposite party also

made an attempt to establish her claim over the pathway (barampath) on

the plea that her purchased land has become landlocked and she has right

to use the suit passage as an easement of necessity, but such plea has

been negated in the commissioner’s report. It has been clearly mentioned

as local feature that said passage is confined within the

defendant/petitioner’s land and it is neither extended to the plaintiff’s land

nor connected to the public road. The record of rights in respect of the

defendant/petitioners land in Dag No. 154 and 155/440 also does not

show the existence of any pathway.

9. He further argued that learned courts below should have relied upon

the title deeds for the purpose of ascertainment of the opposite party’s right

of pathway through and across the petitioner’s land by relying upon the

commissioner’s report which shows the petitioner’s own arrangement for

using their land for the purpose of cultivation and growing vegetables

within the said plot and the same cannot be treated as common pathway.

Therefore, when the title deeds do not disclose existence of any pathway as

claimed by the opposite party, she cannot claim any such pathway out of

her own. Apart from that all the lands surrounding the plaintiffs purchased

land belongs to her husband Manoj Kumar Dev and the nature of land

being agricultural land, she has every right to use such adjacent land for

her access through the public road. The courts below have committed

serious mistake by relying upon the contention of the plaintiff that she has

been land-locked or that she has acquired right by way of easement of

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necessity. Therefore the petitioners have prayed for setting aside the

aforesaid impugned order.

10. Mr. Ray learned counsel appearing on behalf of the opposite party

contended that ‘ka-1’ schedule in the suit plot no.154 and 155/440 are the

part and parcel of ‘kha’ schedule property to the plaint, which originally

belonged to Harahari Dev (deceased father in law of plaintiff). Predecessor

of defendant used to cultivate land under Harahari Dev. Subsequently dag

no. 155 was divided into three parts 155/439, 155/440 and 155/441 out

of which plot no. 155/440 is mentioned as ‘ka’ schedule and plot no. 154

is adjacent to plot no. 155/440. On the eastern side of plot no. 154, there

is a government path and plot no. 155/440 is situated on the adjacent

western side of plot No. 154. The Baram Path is on the northern side of

boundary line of plot no. 154, which was created by original owner

Harahari Dev and barampath (suit passage) is mentioned in “ka-1”

schedule to the plaint which was used by plaintiff’s said father in law

Harahari for the purpose of cultivation over “ka” schedule property to the

plaint. Harahari executed Nirupan Patra and thereby transferred all his

landed properties in plot no. 154 and 154/440 in favour of plaintiff’s

husband Manoj, who also used the said Baram Path for egress and ingress

to suit plot no. 155/440. Thereafter Manoj transferred entire land in plot

no. 154 in favour of defendants on 27.02.2001 and again he transferred

entire land in plot no. 155/440 in favour of defendants. Defendants

thereafter transferred 50 ½ decimal of land in plot no. 155/440 in favour

of plaintiff. Plaintiff after purchasing ‘ka’ schedule property from the

defendants started using the baram path over “ka-1” schedule for entering

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‘ka’ schedule property from the government Road in plot no. 122 as was

used by her husband and her father-in-law.

11. According to opposite party/plaintiff the Barampath i.e. ‘ka-1’

schedule property to the plaint is the only pathway from the government

road which extended to ‘ka’ schedule property and there is no other way for

entering into the ‘ka’ schedule from the Government Road. The father in

law and the husband of the plaintiff used the said barampath (ka-1

schedule property) and for which the defendants have no right to deny user

of the said path. All on a sudden on 10

th February, 2020 the defendants

informed the plaintiff that they would not allow her to use the suit passage

and they had made arrangement for fencing the ‘ka-1’ schedule property.

12. He further submits that admittedly the defendants executed a sale

deed on 11.06.2002 in favour of plaintiff and by dint of said sale deed, the

plaintiff acquired 50 ½ decimal of land in plot no. 155/440. It is also not

in dispute that Nagendra Nath Das, the father of predecessor of present

defendants was a bargadar under Hara Hari Dev, the father of Manoj

Kumar Dev in respect of suit plot and after the death of Nagendra Nath

defendants became the Bargadar in respect of the suit plot.

13. He submits that according to the plaint case, the plaintiffs land in

suit plot no. 155/440 is used for cultivation purpose. It is not in dispute

that the landed properties in an around plot no. 155/440 are all cultivable

lands and the suit land was purchased by the plaintiff from the

defendants/petitioners. The suit passage was being used by her

predecessor for cultivation in the suit plot no. 150/440 and after

purchasing the same she has been using the said path for cultivation

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purpose. Opposite party’s further contention is that it is revealed from the

report of first commissioner that there exists a path which leads to the land

of the plaintiff in plot no. 155/440 from the public road. Though in the sale

deed of plaintiff and in the deed of Manoj Kumar Dev, There is no

mentioning of any passage which leads to the land of the plaintiff in suit

plot no. 155 /440 from the public road but the fact remains that the

defendants did not state as to any other alternative path which leads to the

land of the plaintiff in suit plot no. 155/440. Even in the second report

submitted by Advocate Commissioner Alok Kumar Mallick, there is no

mention about any alternative path for entering into the land of the plaintiff

in suit plot no. 155/440. Plaintiff in his plaint has specifically stated that

“ka 1” schedule property to the plaint is the only path for entering into her

land in suit plot no. 155/440, which she purchased from the defendants

and prior to her purchase, her husband and father-in-law were using the

said path for the purpose of cultivation in suit plot no. 155/440. The

question as to how the land of the plaintiff in suit plot no. 155/440 was

being used for the purpose of cultivation prior to transfer of said land in

favour of the plaintiff, can only be decided after taking evidence during

trial. The existence of ‘barampath’ and usage of right to easement is a

matter of evidence which cannot be decided at this stage. Therefore, the

courts below were justified in passing order in favour of plaintiff/petitioner

since she has made out a prima facie case and also because she will suffer

irreparable loss and injury, if no order of injunction is granted in respect of

the narrow pathway over “ka-1” schedule property which extends form the

public road to the land of plaintiff in suit plot no. 155/440 i.e. “ka”

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schedule through extreme north of suit plot no. 154 and 155/440.

Therefore, the order impugned does not call for any interference.

Decision

14. Learned Court below observed that it is not in dispute that 6 decimal

of land in suit plot no. 154 and 4 acre 8 decimal of land in suit plot no. 155

originally belonged to the father-in- law of the present plaintiff/opposite

party herein namely Hara Hari Dev. It is also not in dispute that

predecessor of present petitioner/defendants Nagendra Nath Das was a

bargadar under aforesaid Hara Hari Dev. Therefore after demise of

Nagendra, the defendants stepped into the shoes of their predecessor in

respect of possession in the suit property. Admittedly aforesaid Harahari

transferred the land in suit plot no. 154 and 154/440 along with other

non-suited properties in favour of his son Manoj Kumar Dev by virtue of a

Nirupan Deed dated 26.01.1970. Subsequently Manoj Kumar transferred

the entire land in plot no. 154 to the defendants by a registered deed of sale

dated 27.02.2001 and he also transferred 1 acre 12 decimal of land in plot

no. 155/440 in favour of defendants. It is also not in dispute that on

11.06.2002, the defendants transferred 50 ½ decimal of land in plot no.

155/440 to the present plaintiff by way of registered sale deed.

15. Now the plaintiff’s claim that there is a ‘Barampath’ (passage for

egress and ingress) for entering into her land in suit plot no. 155/440 and

said path is the only way for egress and ingress to her portion of land in

suit plot no. 155/440 from the public road and they have acquired

easement of necessity and also acquired interest over the said “baramPath”

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mentioned in ‘ka-1’ schedule to the plaint by using the same, for last more

than 12 years. However such contention has been denied by the

defendants referring it as their private passage. At the instance of both the

parties, two local inspection commissions were also held to bring the

topography of the suit property before the court.

16. On perusal of the schedule to the plaint, it appears that plaintiff has

prayed for declaration of his title in “ka” schedule suit property over plot

no. 155/440 and also prayed for declaration of their right, title, interest

over said “ka-1” schedule ‘barampath’ allegedly being only path for ingress

and egress, being user of the same for over 12 years along with prayer for

injunction. Defendant in their written statement in paragraph 40

specifically stated that the lands in and around suit plot was originally

wetlands and only paddy cultivation was possible and as such the question

of usage of suit passage by plaintiff or her predecessor or of acquisition of

any right over the suit passage does not arise at all. Moreover in the

eastern side of said plot no. 155/440, the defendant no. 1 and 3 had filled

up and developed a portion of land to make it cultivable. Non- suited plot

no. 155 and 152 in the eastern side of plot no. 155/440 was also owned by

Harihar Dev and therefore, passage through defendants’ land cannot be

acquired through necessity and if there truly existed any such pathway,

that ought to have been recited in the purchase deed of plaintiff. In the

absence of any such recital in the connected deeds, plaintiff cannot claim

any right over “ka-1” schedule suit passage.

17. It appears that the plaintiff filed the instant suit on 20.02.2020. He

thereafter prayed for local inspection commission which was allowed by the

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trial court and a local inspection commission was held on 13.09.2020 over

the suit plot by advocate Utpal Biswas who submitted the topography of

the suit property in his point no. ‘kha’ ‘Ga’ and ‘’Gha’ as follow:-

“On point no. KHA

That on eastern side of the suit plot 154 there is a Govt. path made with

Concrete. I have showed the same in my rough hand sketch Map.

On Point No. GA

On plot No. 154 there is a vegetable cultivation field. On its northern boundary

there is fencing made with bamboo and splited bamboos etc. And on the north of

that fencing there is a Barmapath which meets with the Govt. Concrete path way

situated on the eastern side. There is also a drain at the extreme north of the suit

plot no:154.

That the north eastern part of the suit plot n: 154/440 there is a vegetable

cultivation field and the north western portion of the same is low land used for

cultivation of crops and the south eastern is KALA and ‘JALJOMI’.

On point No. GHA

There is a Barampath situated on the north eastern part of plot no. 155/440 and

154. That from the north western cultivating field or suit plot No” 155/440 one

can access to the Govt. Path on plot 122 through the said ‘BARAMPATH’.

The said Barampath is mainly muddy path but somewhere of it there are some

brick bats, etc.

The said path way is about 110 feet long from eastern side to west. And the

same is about 3 feet broad on north to south.

There is also pucca drain on the north of the said BARAM Path’. And on its

southern side there is fencing of Bamboos and splited bamboos.

The northern end of the Baram Path is open and connected with the Govt. path

but the western end is obstructed by keeping some Bamboos, splited bamboos

for which it is impossible to reached to the north Western cultivating land of suit

plot no:155/440.”

18. Be it mentioned that said local inspection commission was held in

presence of both the parties as appearing from report and learned

commissioner has also specifically noted that both the parties identified

suit property with boundary and admitted it as correct. The plaintiff and

defendant and/or their representative also put their signature on the field

note prepared by the commissioner and they never raised any objection

against the field note. Therefore, said topography of the suit property as

drawn by the commissioner is the earliest topography after institution of

the suit and in the absence of any other evidence, that can be taken as the

topography existed at the time of filing of the suit, which in sum and

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substance is that, there is a “Barampath” situated on the north eastern

part of plot no. 155/440 and 154 and that from the north western

cultivating field i.e. suit plot no. 155/440, one can access to the

government path on plot no. 122 through the said Barampath. The

northern end of barampath is open and connected with government

concrete pathway but the western end is obstructed by keeping some

bamboo, splited bamboo for which it is impossible to reach to the north-

western cultivating land of suit plot no. 155/440.

19. It also appears that subsequently one more local inspection

commission was held at the instance of defendants on 12.08.2023 i.e.

about three years after the first inspection, where commissioner noted that

in the northern side of the suit land there is a passage to collect the

vegetables but said passage does not extend till the western end of the

plaintiff’s land. Be it mentioned that said inspection was conducted only in

presence of defendant as plaintiff was not present, during inspection,

though commissioner noted that he served notice upon both the parties.

20. Therefore, both the report discloses that though there is a barampath

but extreme western end of the barampath is not open in order to reach

plaintiff’s portion of land and defendant’s claim is that it is their private

pathway for plucking vegetables. According to first commissioner’s report

western end of said passage is obstructed by bamboo fencing and as per

second report said barampath in the northern side of the suit plot does not

extend till extreme western end to reach plaintiffs land.

21. In the above scenario the trial court held that plaintiff had failed to

produce any document, which can show that the passage marked “P” strip

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of Land was upto the plaintiff’s “A” marked land but again defendant had

also failed to show that there exists any alternative path for the plaintiff to

use his “A” and “A1” strip of land, which raises prima facie case in favour of

plaintiff for adjudication and since plaintiff has a legal right over the suit

plot and considering the balance of convenience and the balance of

inconvenience, he directed both plaintiff and defendant to maintain status

quo, to the nature character and respective possession over the “ka”

schedule property to the plaint, which is plot no. 155/450 though he has

not stated anything specifically about the portion of “ka-1” schedule which

is the suit passage and the usage of which is the main subject matter of

controversy between the parties.

22. When the matter went to the appellate court, learned Judge virtually

granted the entire relief in the suit as quoted above though he made

specific observation that a question arises in his mind as to how the land in

question i.e. the land of plaintiff in suit plot no. 155/450 was being used

for the purpose of cultivation, prior to transfer of said land in favour of the

plaintiff but he observed that such question can only be decided after

taking evidence from the parties.

23. Therefore, one thing is clear that though both the commission report

depicted topography of the suit property that western end is not open to

reach plaintiff’s land, but court below directed to maintain status quo

erroneously stating that the pathway leads to the land of plaintiff form

public road, ignoring topography of suit passage as reflected in

commission’s report. Therefore though the courts below are in favour of

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directing both the parties to maintain status quo in respect of nature,

character and possession of the suit pathway, but without considering

what was the nature, character or possession of the suit passage at the

time of filing of the suit.

24. While setting aside the order of the trial court, the court below

specifically restrained the defendants to prevent the plaintiff from using the

“ka-1” schedule pathway for the purpose of her cultivation and also made it

clear that the plaintiff shall use the same narrow pathway only for the

purpose of cultivation in respect of her land in suit plot no. 155/440,

inspite of the fact that the earliest commission report discloses that though

the northern end of the suit passage is open and connected with the

government path but the western end is not open and has been fenced by

splited bamboo and for which it is impossible to reach to the north-western

cultivating land of the suit plot no. 155/440 through that pathway.

25. Therefore, in order to get a restraining order in the form of

injunction, plaintiff was under an obligation to show that he was all along

in possession of the suit passage, or plaintiff could have shown that he was

dispossessed from using the pathway. Such findings are lacking and

therefore, the court below had acted without jurisdiction in passing the

aforesaid restraint order. The court below did not even consider whether

there was any proof that the plaintiff was forcibly dispossessed in using the

said pathway by the defendants.

26. I find that the approach made by the appellate court is not the

approach which was called for in entertaining a claim of this nature put

forward by the plaintiff and hence the order is also vitiated by an erroneous

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approach to the question falling for decision, specially when he is of the

definite opinion that how the land of the plaintiff in suit plot no. 155 /440

was being used for the purpose of cultivation prior to transfer of said land

in favour of plaintiff, can only be decided after taking evidence from the

parties. In exercise of the appellate jurisdiction, the court below is duty

bound to consider whether the order which is going to be passed is

supported by necessary findings. Prima facie there is no material to

indicate that at the time of or before filing of the suit, plaintiff was in fact

dispossessed by the defendant in using the “ka-1” schedule pathway.

27. One more aspect, involved in the suit is that plot no. 155/440 is

unpartitioned property. The question of Legality and validity of the claim of

a co-sharer about acquisition of right, title and interest either by way of

adverse possession or by way of easement of necessity is also involved.

From the order of the court below it is not possible to come to the

conclusion that on a proper advertence to the relevant material, prima facie

clear finding had been rendered by that court on this aspects, when the

question as to whether plaintiff has become landlocked or not can only be

decided on the basis of evidence.

28. Therefore, prima facie I find that the plaintiff’s claim over the “ka-1”

schedule passage or acquisition of right, title and interest over the said

property remains to be proved in the suit.

29. However since primary object of granting temporary injunction is for

the protection and preservation of the property, the orders of the courts

below are liable to be modified to the extent that both the parties will

maintain status quo in respect of nature, character and possession of the

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“ka-1” schedule suit passage till disposal of the suit in terms of the nature,

character and possession thereof as reflected in point no. “Gha” of the

commissioners report dated 08.01.2021 i.e. ‘the northern end of barampath

is open and connected with the Govt. Path but the western end is obstructed

by keeping some bamboos splited bamboos for which it is impossible to

reach to the north western cultivating land of suit plot no. 155/ 440.’

30. It is also to be mentioned that the parties shall not create any third

party interest in respect of the said disputed “ka-1” schedule passage

pending disposal of the suit. Considering the nature of the suit and the

question involved, I would request the Trial Court to try and dispose of the

suit expeditiously. However the trial court shall dispose of the suit in

accordance with law without being influenced by any observation made

herein. Be it mentioned that the observations made herein are only for the

purpose of disposal of the temporary injunction application and not on the

merit of the suit.

31. C.O 3777 of 2024 thus stands disposed of.

Urgent Xerox certified photocopies of this Judgment, if applied for, be given

to the parties upon compliance of the requisite formalities.

(Dr. AJOY KUMAR MUKHERJEE, J.)