BHAURAO AMBADAS KASAR Vs. VINOD RAMDAS KASAR

JUDGEMENT

(1.) Invoking the jurisdiction of this Court under section 100 of the Code of civil Procedure, the appellant-defendants have filed this second appeal challenging the judgment and decree dated 5-12-1986 passed by the District Judge in Regular Civil Appeal no. 25/1986, whereby the appeal has been partly allowed and the judgment and decree passed by the trial Court is set aside and the defendants arc restrained from disturbing the use of the lane of the present width (of which location is shown in schedule C) up to the extent of 35 feet from the northern end towards south and further restrained from constructing or committing any act that would offend the plaintiffs right to use the lane over the aforesaid 35 feet part of the lane.

(2.) Brief facts are required to be stated as under. : the plaintiff and defendants are from the same family and they owned ancestral property which was the subject matter of the partition. The partition deed dated 01/1/1949 (Exh. 63) was reduced into writing. The father of the plaintiff and each brother got separate share in the property. The father of the plaintiff got a building. To the east of the plaintiff's house there is lane. The width of the lane is about 2 or 21/2 ft. and length along south-north is about 100 or 140 ft. The aforesaid lane was kept open for the use of the plaintiff and defendant No. 1 and the plaintiff was given right to keep doors and windows and also to let the rain water flow through this lane. Later on 5- 9-1969 there was partition between the plaintiff and his father and the property in question came to the share of the plaintiff. The right of user of aforesaid lane available to the plaintiff's father and subsequently to the plaintiff was limited to descendants from the family of the plaintiff. The plaintiff claimed that the defendants started encroaching upon the land and some southern portion of the land came to be occupied in spite of protest. Ultimately, the southern end of the lane came to be totally blocked and to some extent there was some construction also in the lane. Almost half the land thus came to be covered by the construction till March, 1983. The defendants had also closed the north entrance of the land and had started raising pillars, and therefore, the plaintiff was constrained to file the suit for perpetual injunction restraining the defendants from making any construction in the said lane.

(3.) The defendants contended that since prior to 1975-76, the portion of land had been covered by a slab and half of the portion from the southern side of the lane has almost been blocked by raising construction and thus the entry from that side is closed since about 1957, and therefore, the right of easement has been extinguished as it has not been enjoyed continuously for the statutory period of twenty years prior to the institution of the suit, and therefore, the suit is barred by limitation.