MER NAGAJAN AALA Vs. PUNJA KANA

JUDGEMENT

(1.) . This is a revision application by the plaintiffs of the Regular Civil Suit NO. 183 of 1976 pending in the Court of the learned Civil judge Junior Division Porbandar. The plaintiffs have filed the aid suit for restraining the defendants from burdening their property with the passage to the defendants fields. The suit is one purely for an injunction. The defendants who are the opponents herein have filed their ply to the suit asserting their easement right over the plaintiffs fields. he learned Trial has therefore raised the following issue Whether the plaintiffs prove that the defendants have no right of way through the said land and are trying to create a new right of ease- ment as alleged. The plaintiffs therefore gave an application to the learned Judge Exh. 51 requesting the learned Judge that the issue as framed above should be replaced by the issue to the effect whether the defendants prove a right of way as alleged by them.

(2.) The learned Judge however did not agree and by his order dated 9 rejected that application.

(3.) It is no doubt true that the party who goes for the courts assi- stance must establish its case in order to get the relief prayed for. But in this case the title of the plaintiffs to their lands is not in dispute. Ordinarily it is the incident of a proprietory right to enjoy his property without any interference with his right by any of his neighbours. But in all civilized Nations some such interference is recognised in the form of easement right and the easement right from its very definition is a right to burden another persons property for the mere beneficial enjoyment of ones own property. From the very nature of things it is evident that the existence of such a burden is the matter of exception and unfettered enjoyment of ones property is the matter of general rule. Whoever wants the court to have the positive fact to be proved in his favour has to Bake that fact good in a Court of law. To put it in a different way it the negative proposition from the very nature of things which is difficult to be proved. In a case like the one on hand the plaintiffs cannot be asked to furnish negative proof about the absence of any right with the defendants. It is therefore obvious that the defendants have to make good their assertion of the positive fact namely the existence of easement right as alleged by them. It is therefore obvious that the issue framed by the Trial judge is erroneous and it shows that the illegality is committed by him in exercise of his jurisdiction which if allowed to stand would cause mis-Carriage of justice because the learned Trial Judge with this issue on record would proceed with the trial-with misconception. I therefore allow the application Exh. 51 and delete the issue as framed by the learned Judge in accordance with the prayer put-forward by the plaintiff and direct the learned Trial Judge that he shall raise the issue to the effect whether the defendants prove that they have acquired they alleged easement right alleged by them by immemorial user. Rule is accor- dingly made absolute with no order as to costs. Rule made absolute.