HAMIR RAM Vs. VARISANG RAIMAL

JUDGEMENT

(1.) This is plaintiffs' Second Appeal arising out of the following facts : The plaintiffs-appellants filed a suit for declaration that they had got a right of way to their plots Survey Nos. 511 and 512 through southern portion of Survey Nos. 502 and 510, in the alternative through southern portion of Survey Nos. 502 and 506, further in the alternative through Survey Nos. 517/1 and 515 of respondent Nos. 4 and 5. The right of passage was claimed on several grounds. The first was by way of immemorial user, by acquisition as prescription, as grant and as easement of necessity. They also sought injunction restraining the owners of the above plot numbers from preventing them from passing through the aforesaid passage and for taking carts, bullocks and ploughs, etc. The claim of the plaintiffs was that plot Nos. 511 and 512 belonging to them are in land-locked condition. Plot Nos. 502 and 510 are to the west of the plaintiffs' plots owned by respondent Nos. 1 and 2, whereas plot Nos. 503, 508 and 509 are in the ownership of respondent No. 3, whereas plot Nos. 515 and 517/1 are owned by respondent Nos. 4 and 5. Some dispute arose in respect of this right of passage when Suit No. 95 of 1971 was filed, but it was dismissed. The appeal was preferred where the suit was withdrawn with liberty to file a fresh suit. Before that the appellant No. 2 initiated proceeding in the Court of Mamlatdar in 1966 for right of way to the north of Survey Nos. 502 and 509 or south of Survey Nos. 503 and 508. The suits were dismissed by Mamlatdar observing that the party should go to Civil Court. Thereafter, a compromise was entered into between the parties as a result of which respondents 1 to 3 or their predecessors agreed to keep open a space to the south of Survey Nos. 502 and 510 for the purposes of their passage. Subsequent to this oral compromise an agreement in writing was entered into wherein the right of way from southern portion of Survey Nos. 502 and 510 was recognised. In the alternative it was pleaded that the plaintiffs have right of passage from northern part of Survey Nos. 502 and 509. The right of passage through plot Nos. 517/1 and 515 belonging to respondent Nos. 4 and 5 was referred to as Vandhavav way.

(2.) The suit was contested by the defendants on various grounds, viz., the suit was barred by limitation and that the plaintiffs have not acquired any easement by immemorial user or prescription or by way of necessity. The written agreement is said to be inadmissible in evidence because through it immovable property for more than Rs. 100.00 was transferred. Hence, it is compulsorily required to be registered under S.17(1) of the Registration Act.

(3.) . Respondent Nos. 4 and 5, however, in their written statement admitted that the appellants have got northern as well as southern way, but they are not the ways passing through their fields. They denied that the appellants have got a right of way through Survey Nos. 517/1 and 515 belonging to them.