BALLEY Vs. RAMA SHANKER LAL

JUDGEMENT

(1.) THE plaintiff-respondent brought the suit giving rise to this appeal for a permanent injunction restraining the defendants from interfering in any way with the right of the plaintiff, the members of his family, the labourers employed by him and the bullocks belonging to him from going to plots Nos. 9 and 10 over the rasta MNPQ shown in the plan attached to the plaint and for directing the defendants to remove the portion of a wall MN marked in the plan aforesaid constructed by them. The plaintiff's case was that the passage claimed by him was one Lattha wide joining his plots Nos. 9 and 10 with the main public road in the north and passing over the boundary between plots Nos. 30 and 31 and that he, members of his family and servants had been using it for a period of more than 25 years as of right without any let or hindrance; thus they acquired a prescriptive right of easement under Section 15 of the Easements Act. The plaintiff further pleaded that the passage over the land MNPQ shown in the plaint map was the only access available to the public road from his plots Nos. 9 and 10. The defendants resisted the suit on the plea that there was no passage one Lattha wide as claimed by the plaintiff and what existed was a mere channel for irrigation purposes between the two fields Nos. 30 and 31 which the plaintiff claimed falsely as a passage. It was denied that the plaintiff as of right had been using any part of the land as a rasta. It was further pleaded that the plaintiff had two or three years prior to the filing of the suit constructed a gate on the north of his plots Nos. 9 and 10 which were enclosed by boundary walls and has falsely put up the claim that the gate existed for a long time as the access point from the public road to plots Nos. 9 and 10. It was also pleaded that in the consolidation proceedings no such claim was ever asserted by the plaintiff and a chak road was carved out on other plots from the public road which runs towards the east of the plaintiff's plots Nos. 9 and 10 and he can reach his plots through the chak road.

(2.) THE learned Munsif who tried the suit made a local inspection and found that there was no passage one Lattha wide as claimed by the plaintiff on the spot. He found that on the ridge between the two fields there was a beaten path 1 to 2 feet wide which led from the main road in the north up to the northern boundary of the plaintiff's fields Nos. 9 and 10 passing over the boundary between plots Nos. 30 and 31. The learned Munsif further found that the gate set up by the plaintiff in the north of his boundary enclosing plots Nos. 9 and 10 appeared to be new and fresh. As regards the wall alleged to have been constructed by the defendants, it was found that the defendants had enclosed their plots Nos. 30, 31 and 33 and that wall was also freshly constructed. The learned Munsif on a consideration of the entire evidence on record found that the plaintiff had failed to establish the existence of the passage as claimed by him as one Lattha wide sufficient for the plaintiff to carry his bullock carts and Ikkas, and dismissed the suit. On appeal by the plaintiff, the learned Civil Judge found that there was no passage one Lattha wide as claimed by the plaintiff on the spot but there was a 'Danda' a foot path, on the ridge between the boundaries of the two fields 1 to 2 feet which connected the plaintiff's enclosure on plots Nos. 9 and 10 with the main public road in the north. The learned Judge held that the plaintiff having established by cogent evidence that he, members of the family and servants had been using the 'danda' for more than 25 years without any interruption, the plaintiff acquired a prescriptive right of way under Section 15 of the Easements Act and to that extent decreed the plaintiff's suit restraining the defendants from interfering with the plaintiff's right to use the passage as found on the ridge between the defendants' plots 30 and 31. The learned Judge further decreed the suit directing the demolition of the wall MN constructed by the defendants. It may be stated here that the learned Judge affirmed the finding of fact recorded by the learned Munsif that there was no proof that the defendants had in any way after the formation of the chaks in the consolidation proceedings reduced the width of the passage. He also affirmed the finding that the plaintiff had constructed a gate on the northern boundary of his Gher in plots Nos. 9 and 10 in the recent past. The defendants feeling aggrieved have now come up in second appeal.

(3.) I do not find any merit in the objection raised to the finding recorded by the court below on the question of an alternative passage. It was urged by the learned counsel for the plaintiff-respondent that to the south of the plaintiff's gher in plots Nos. 9 and 10 is the railway land and any time access through it can be stopped. Learned counsel, however, has not been able to satisfy me that the finding recorded by the court below that there is a well beaten track which is used by the villagers running adjacent to the southern boundary of the plaintiff erroneous. There is no evidence on record to show that the said beaten track is on railway land. Even if it were so, it cannot be predicated nor it is necessary to do so what rights have been acquired by the villagers on the land under the said beaten track. Suffice to say that there is an alternative passage through which the plaintiff can have access to his Gher in plots Nos. 9 and 10 from the public road.