BHARAT SINGH Vs. DHARAM PAL SINGH

JUDGEMENT

(1.) S K. Phaujdar, J The present second appeal was admitted on the follow ing substantial questions of law: (1) whether the right of easement can be claimed on a public path way; (2) whether the right of path way can exist on a land which has been declared to be a bhumidhari land of the appellant; and (3) whether the right of easement can be claimed on a bhumidhari land.

(2.) A suit was filed before the Munsif, Bijnor, by the present respondent which was registered as Original Suit No. 237 of 1972. The present appellants were the defendants therein. The suit related to a path- way lying towards the west of the 'haveli' belonging to the plaintiff. The pathy-way stretched from north to south and was a public way. The plaintiff and his predecessor have been in use of that path-way for 100 years and the pathy-way was capable of use by foot and by bullock-cart. The plaintiff claimed to have acquired in easementary right thereon. There was no other way for such user by the plaintiff for egress and ingress from and to his Haveli and Ahata. It was alleged that the defendants intended to block the path by raising some constructions although they had no right thereon. The defendants had also started keeping their manure pits in the path-ways to the hindrance of the plaintiff in its user. The plaintiff prayed for a per manent injunction against the defendants so that no disturbance or hindrance to the use of the path-way be created by them.

(3.) THE aggrieved plaintiff filed the first appeal which was registered as Civil Appeal No. 382 of 1976 and the same was heard and decided by the 1st Addl. District Judge, Bijnor on 12-1-1977. THE first appellate court allowed the appeal, set aside the judgment and decree and decreed the suit restraining the defendants from raising any construc tion on the land in dispute and from causing any obstruction on the public path accept ing the plaintiffs right of way thereon. THE defendants were also directed to remove the manure pits and other encroachment on the public path.