ALLAH DIN Vs. RUKMANI DEVI

JUDGEMENT

(1.) THIS is plaintiffs' appeal. The trial court decreed the suit for declaration and injunction. The lower appellate court, however, modified the decree. The brief facts are these; The plaintiffs claimed over the disputed land the right of passage and the right to flow water through a Nali which also passed through the disputed piece of land. The rights were claimed on the basis of prescription. The courts below have given a concurrent finding that the plaintiffs had proved the rights which they claimed. The trial court had decreed the suit in full but the lower appellate court modified the decree. The trial court had given a declaration that the plaintiffs had a right of way over the entire land in dispute which had been marked in red ink in the map attached to the plaint. Similarly, the right of flowing water through the disputed Nali as shown in the said map was also decreed. Permanent injunction was granted restraining the defendants nos. 1, 2 and 4 from causing any interference in the said rights of the plaintiffs. The modification effected by the lower appellate court was that it declared in this manner :

(2.) IN my opinion, the lower appellate court should not have made the said modification. Once the courts below held in favour of the plaintiffs in respect of their claim that they had an easementary right of passage over the entire disputed land, it was not open to the lower appellate court to curtail the said easementary right of passage acquired by prescription by restricting it to a 5' wide passage instead of 15' wide passage which had been claimed by the plaintiffs in the plaint and which claim had been found to be correct by the courts below.

(3.) LEARNED counsel for the respondents has contended that an admission was made on behalf of the appellant and, therefore, the appellant is bound by the admission and in view of such admission, this appeal is not maintainable. I do not agree. In the judgment of the lower appellate court, it is said :