TANBA N MAHAJAN Vs. PANDHARI N MAHAJAN

JUDGEMENT

(1.) BY jnvoking the jurisdiction of this Court under section 100 of the Code of Civil Procedure, the unsuccessful plaintiff has filed this second appeal being aggrieved by the judgment dated 21st December, 1990 in Regular Civil Appeal No. 132 of 1987 passed by the learned Additional district Judge whereby the appeal came to be dismissed and the judgment and decree passed by the trial Court on 22-7-1987 dismissing the suit of the plaintiff seeking relief of declaration of easement of way has been confirmed.

(2.) BRIEF facts are required to be stated as under : the plaintiff and the defendant are real brothers and they are in all five brothers by name; Pandurang, Tanba (plaintiff), Kisna, Pandhari (defendant)and Bhagwan. It is contended that the joint family of all the brothers owned agricultural land which was the subject-matter of partition. The agricultural lands were divided by metes and bounds by the partition dated 22-3-1976 and each brother were allotted respective share in the lands. The plaintiffs case is that the agricultural land allotted to his share has been shown by capital letter 'h' in the map annexed with the plaint. Whereas the defendant is also allotted the land Survey No. 39/4. It is contended that the plaintiff was required to have access to the land allotted to his share through the way shown by letters 'a B C D E F G' in the plaint map. He contended that the said way is amount 10 ft. in width and he is using the said way since last 30 years in order to cultivate his field by taking bullock cart and other agricultural implements. He contended that this is the only way which is available in order to have access to his land and therefore, claimed easement of way by prescription as well as by way of necessity as the land of the plaintiff has been locked from all sides. The plaintiff contended that the defendant has obstructed the user of the way at the time of Akhadi festival of 1984 and he had put thorny fencing and stones on the way at the point shown by letters 'kg'. Therefore, the notice dated 3-8-1982 was served on the defendant to which evasive reply was given on 11-8-1982. The plaintiff was therefore, constrained to file the suit for permanent injunction restraining the defendant from causing any obstruction in the user of the right of way.

(3.) THE defendant combated the claim of the plaintiff by filing written statement and contended that the plaintiff has an access to his land through the way shown by letters 'a B C D E F G ' as shown in the map annexed with the written statement. It is contended by the defendant that the agricultural land was partitioned between all the brothers by virtue of partition deed dated 22-3-1976 and in the partition deed itself the way has been granted to the brothers for cultivation of agricultural lands allotted to their shares. He contended that the plaintiff is trying to create a new right of user and therefore, appropriate reply on 11-8-1982 was given.