RAM NARAIN CHOUBEY Vs. GANGADHAR CHOUBEY

JUDGEMENT

(1.) THIS is the defendant's second appeal. Both the courts below have decreed the plaintiff's suit.

(2.) THE brief facts are these : The plaintiff prayed for the removal of two disputed walls marked by letters AB and CD and the 'chappar' marked by letters ABCD in the sketch map given at the foot of the plaint. The house of the plaintiff is in the south of the house of the defendant and a 'gali' intervenes between these two houses. Both these houses have their main doors towards the east and they are situated in village abadi. According to the plaintiff, the disputed land ABCD was used as passage for a fairly long time. It is further alleged in the plaint that the nabdan which emanates from the northern wall of the plaintiff's house passed through the disputed land and water used to flow through the land in dispute. The plaintiff claims to have prescribed for a right of easements of passage and of flowing water through the land ABCD. The defendants are said to have raised walls AB and CD on the northern and southern end of the land in suit and are said to have placed 'chhappar' thereon and thereby caused obstruction in the plaintiff's aforesaid rights of passage and of flowing water. The defendants denied the rights claimed by the plaintiff and averred that the land in suit had been in their user and possession as sehan and belonged to them. It was further asserted that the disputed land had always remained covered by 'chappar'. The plea that the suit was hit by limitation was also raised in defence. The two courts below have accepted the plaintiff's version and have therefore, decreed the suit. It has been held by the said courts that the disputed walls AB and CD were put up shortly before the institution of the suit and so also the chappar. The said courts also held that the plaintiff had successfully proved his claim to have acquired the easementary right of passage and of flowing water over the disputed land. The defendants' ownership of the disputed land was accepted by the courts below. However, in view of the plaintiff's easementary rights of passage and of flowing water over the disputed land, it was held that the defendants were not entitled to put up the walls and the 'chappar'. Hence the suit was decreed for the removal of the disputed constructions as shown in the map (paper No. 22A-2) which was made a part of the decree.

(3.) LET us examine these contentions in seriatim.