HIRACHAND Vs. SYED BASHEERUDDIN

JUDGEMENT

(1.) This Second Appeal is by the defendant in OS.No.9311 of 1962 on the file of the Munsiff at Aland. It is directed against the judgment and decree, decreeing the suit, made by the Civil Judge, Gulbarga, in RA.No.514/64. That appeal had been preferred by the plaintiff against the judgment and decree of the Munsiff, dismissing the suit.

(2.) The material facts, briefly stated, are as follows: The plaintiff sued for a declaration of his easementary right over a 'Sarband' belonging to the Government. It is his case that he has been using the 'Sarband' to walk up to his land for over 30 to 35 years and that the appellant herein obstructed such right of way by constructing an 'Ami' across it. The case of the appellant-defendant is that there was no such right and a declaration of such an easementary right cannot be granted in the absence of the Government as a party.

(3.) The trial Court, while holding that the plaintiff had established the alleged user for a period of 30 to 35 years came to the conclusion that the suit would not be maintainable without impleading Government as party. The suit was therefore, dismissed. On appeal by the plaintiff, the lower appellate Court came to the conclusion that the 'Sarband' was not a Government property and, therefore, decreed the suit limiting such user to a mere footpath. As regards the finding that it was being used for over 30 to 35 years, it remained undisturbed. Aggrieved by the said decree the defendant appeals.