SHIV PRASAD Vs. GANGARAM AND OTHERS

JUDGEMENT

(1.) This is the Plaintiffs second appeal under Sec. 100 of the Code of Civil Procedure (for brevity 'the Code') filed against the judgment and decree dated 28-07-1997 passed by Additional District Judge, Sakti in Civil Appeal No. 15-A/97 preferred by the Respondents against the judgment and decree passed in favour of the Plaintiff by the trial Court which has been allowed by the first appellate Court and the suit of the Plaintiff for permanent injunction, damages and declaration of his easementary right has been dismissed.

(2.) Intially the Appellant/Plaintiff filed a suit for permanent injunction and damages. Subsequently, relief of declaration of easementary right over the land of the Defendants was added. Case of the Plaintiff before the trial Court was that the Defendants were father and son and some civil litigation was pending between them. The Plaintiff is the owner of Khasara No. 2773/3 which he uses for the purpose of thrashing filed. In southern p of the above land the land bearing Khasra No. 2770/1 is situated. The Plaintiff had been using the said land for the purpose of bringing his bullock c since the period of ancestors of the parties. However, Defendants mala fidely obstructed the way by erecting earthen wall with effect from 09-11-1992. Plaintiff had no other alternative way except through the land of the Defendants and they were exercising the right of way continuously, peacefully and without any obstruction since the time of his father.

(3.) The Defendants in their written statement denied the plaint allegations and stated that the earthen wall was constructed by their ancestors long back (25-40 years) and there is no way for carrying the bullock cart over their filed and as such the Plaintiff had no right of thoroughfare. It was alternatively pleaded that the Plaintiff had an alternative way in front of his land which is being used by him since long and accordingly prayed for dismissal of the suit.