PAYAFPA JAKKAPPA WAGHE Vs. JAYAPAL SHRIPAL BADANEKAI

JUDGEMENT

(1.) this appeal has been preferred by the plaintiffs who had filed a suit in 1961 seeking a direction upon the defendants to close the pit or trenches dug up by them in-between their lands r.s. nos. 371/1 and 337/3 and also for restraining them from obstructing the plaintiffs from passing over those lands with their carts and catties. Though the suit was decreed by the trial court, but, the said judgment and decree has been reversed by the lower appellate court thereby dismissing the suit.

(2.) plaintiff nos. 1 and 2 are the owners of r.s, No. 375 and plaintiff nos. 3 and 4 are the owners of r.s. nos. 376/a and 376. According to the plaintiffs there is a way marked as 'abcdefghi' as shown in the plaintiffs' sketch map which leads from sadalaga village to the land of the plaintiffs. The said way as per the map passes through 27 survey numbers including survey nos. 371/1 and 377/3 owned by the defendants. Admittedly, only a part of the claimed way lying between the points g and h passes through the lands owned by the defendants. The owners of other survey numbers over which the said way is claimed to be passing have not been impleaded in the present suit. According to the plaintiffs they have been using the said way since the time of their grandfather and therefore they have acquired easementary right by prescription under Section 15 of the Indian easements Act, 1882 (hereinafter the act only). Keeping in view the pleadings of the parties and the evidence adduced, the trial court decreed the suit but the same has been reversed by the lower appellate court.

(3.) the following points were formulated by the lower appellate court for consideration: