VIPIN KRISHNA GARG Vs. SHYAM LAL GARG

JUDGEMENT

(1.) the plaintiff filed a suit for a permanent injunction restraining the defendant from placing any obstruction in the right of passage on the land in dispute and to remove the obstruction on the disputed rasta. The plaintiff alleged that he had been using the said passage continuously for the last 30 years and that the rainwater was also flowing from the disputed piece of land for the last 30 years and that he had been allowed ingress and egress on the land in question for the last 50 years. The plaintiff alleged that in the last week of december 1970, the defendant placed obstructions on the land in question as a result of which his right of passage to his shop was blocked. The flow of rainwater from his shop was also obstructed. The plaintiff requested the defendant to remove the obstructions. Since the defendant failed to remove the obstruction, the plaintiff filed a suit for a permanent injunction. The defendant in his written statement contended that the plaintiff had no right or flow of the water on the land in question nor had any right to use the land as a passage. The defendant had full right to place the obstructions on the land in question.

(2.) before the trial court, it has come in the evidence that the plaintiff had been using the land as a passage continuously for a period of 30 years and that the rainwater from his shop also flowed from the passage in question on account of the natural slope of the land. It has also come in the evidence that the defendant had only purchased the land in july 1970 and within six months, thereafter, had placed the obstructions.

(3.) the trial court after framing the issues decreed the suit and held that the plaintiff had acquired a right of easement by prescription for the flow of the rainwater from his shop and also acquired a right of passage over the land in question. The trial court further directed the defendant to remove the obstructions on the disputed rasta. Aggrieved by the decision of the trial court, the defendant filed an appeal, which was also rejected by the appellate court. Consequently the defendant-appellant has now preferred the second appeal.