RAM KUER Vs. JAMUNA PRASAD AND OTHERS

JUDGEMENT

(1.) The plaintiff respondent and defendants 1 and 2 are real brothers. Apart from the defendants 1 and 2, there are three other brothers. All of these brothers were six in number. These six brothers entered into a family agreement dated 4-5-1957 in accordance with which they entered in their possession of the properties allotted. The plaintiff had a grievance against defendants 1 and 2 for not being permitted to use the passage agreed upon and also with regard to a wall which hindered air and light. These rights were disputed by the defendants.

(2.) Some other pleas were taken to defend the suit, but in this appeal it is not necessary to mention the same, On the pleadings, the trial court framed issues 1 and 2. Both the parties adduced oral and documentary evidence. That trial court decided these issues in favour of the plaintiff and decreed the suit against which the appeal preferred by the defendant was dismissed. The lower appellate court while maintaining the decree of the trial court passed the following order :

(3.) Before me in this appeal, the learned counsel for the appellant urged that only in cases of absolute necessity easement under Sec. 13(a), (b) and (c) could arise, but as in the instant case there was another passage for passing to the road about which the claim had been made by the plaintiff, therefore, the suit was not maintainable. The two courts have found concurrently that there were latrines on both sides of the alternative passage and, as such, the plaintiff's right for getting the relief with regard to ABCDMNOP could not be denied. The view taken after appraisal of evidence was that the plaintiff had been given the right under the family settlement. The finding of the two courts below is one of fact.