SARNU Vs. FAGANIA

JUDGEMENT

(1.) This appeal, preferred under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 09 -05 -1988, passed in Original Suit No. 08 of 1986, by the learned District Judge, Tehri Garhwal, whereby said suit is decreed with costs for perpetual injunction against the de fendants (appellants) restraining them from creating any obstruction over land in dispute against the right of plaintiffs (respondents) to use it as a pathway. The trial court has further decreed the suit for Rs. 3,000/ - as damages.

(2.) Heard learned counsel for the parties and perused the/entire record.

(3.) As per the plaint case, the plain tiffs are residents of village Moliya, Patti Upli Ramoli, District Tehri Garhwal. prom the period of their ancestors it is alleged that they were using the plot No. 1356 situated in Semalhari Tok, owned by the defendants No. 1 and 2 as pathway for reaching to the plots owned by them (plaintiffs ). It is further pleaded by the plaintiffs that they were using said land in that manner for over fifty years, openly and as of right. Claiming the easementary right, it is al leged by the plaintiffs that on 21 -02 -1983, they were obstructed by the de fendants No. 2 in their user of the above plot as pathway, and thereafter, raised a wall obstructing the pathway. The wall was removed on 06 -03 -1983 but path way was again closed by the defendants No. 1 and 2. On this, the proceedings under Section 147 of the Code of Crimi nal Procedure, 1973 (hereinafter referred as Cr. P. C.) were initiated against defend ants No. 1 and 2, before the Sub Divi sional Magistrate, Tehri, in which an order was passed in favour of the plain tiffs directing defendants No. 1 and 2 to remove the obstruction, till the rights are determined from a competent court. It is further pleaded in the plaint that to save themselves from the order of the Magistrate defendants Nos. 1 and 2 in stituted a suit No. 54 of 1983 against the plaintiffs / respondents seeking per manent injunction, but said suit was later on withdrawn by the defendants. By amending the plaint, it is further pleaded that again the defendants No. 1 and 2 raised the wall and there was another round of litigation before the criminal court. With these allegations, suit No. 08 of 1986 was filed by the plaintiffs on 06 -02 -1986 alleging that the cause of action has arisen to them on 22 - 02 -1983, when wall was raised by defendants No. 1 and 2 over their plot No. 1356 preventing thereby plaintiffs to use it as passage to their fields.