ABDUL MAJEED HAJI Vs. SHORABI

JUDGEMENT

(1.) The substantial question came up for consideration is the permissibility of granting a decree based on prescriptive right of way without scheduling the servient heritage and the non compliance of mandate under Order VII Rule 3 CPC. Both the courts below failed to notice the non incorporation of servient tenement, without which a decree of prescriptive right of easement granted. The basic principle governing easement and grant of a decree in compliance of Order VII Rule 3 CPC not seen followed by either the trial court or the first appellate court.

(2.) There are only two schedules. 'A' schedule is the property of plaintiffs and 'B' schedule is the property of defendants. The property over which the way or the easement claimed is not separately scheduled as mandated under Order VII Rule 3 CPC. The reliefs sought in the plaint are extracted below for reference:

(3.) The suit is valued as under: