JAIPAL SRIPAL BADNIKAI Vs. PAYAPPA JAKKAPPA WAGHE

JUDGEMENT

(1.) The appellant is the second defendant and respondents are the plaintiffs. The 1st defendant is the owner of the land S.No.371/1 and the second defendant is the owner ot the land to the west of it, namely, S.No.377/3. The plaintiffs are the owners of lands which lie to the north. The case of the plaintiffs is that there is a path-way leading from the village which is to the south of the lands of the defendants as well as the lands of a number of other persons; that the path-way enters the land S.No.371 at its south-eastern point marked as 'F' in the plaint sketch, and runs along the south-eastern boundary of the said land to the point 'G' which is the southwestern point. Thereafter, the path-way runs north-west along the common boundary between the lands of the 2 defts. and reaches the lands of the plaintiffs to the north. The plaintiffs alleged that the defendants had dug trenches in their lands to obstruct the said passage. They filed the suit alleging that they had acquired an easementary right of way by proscription. According to them, the way or passage is 8ft. in width. The defendants filed separate written statements. They both denied the alleged right of way claimed by the plaintiffs.

(2.) The 1st defendant stated in his written statement that in order to protect his land, he has dug up a trench on the western strip of his land and that he is doing so since the last many years. Similarly, the second defendant stated that he had dug up a french in a part of his own land but that the plaintiffs have no right to question the same.

(3.) The trial Court held that that the plaintiffs had established their right of way along FGHI. as shown in the plaint sketch as an easement by prescription and that the right of way is about 8ft. in width. The trial Court noticed that the 1st defendant has admitted in his evidence that he dug up the trench four years ago in RS.No.371/1 and that the second defendant also did so. The trial Court, therefore, held that the defendants are bound to restore the passage by filling up the trench and make it usable as a passage by the plaintiffs. It accordingly decreed the suit directing the defendants to close the pit or trench dug up by them in between their lands RS.Nos.371/1 and 377/3 and retsore the passage to its original position. It also granted an injunction restraining the defendants from obstructing the use of the path-way by the plaintiffs.