TUKARAM RAJARAM SUPLE Vs. SONBA CHINDHU MALI DEFENDANT

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs against the dismissal of their suit by the lower appellate Court which reversed the decision of the trial Court decreeing the plaintiff's suit. The present suit was filed by the plaintiffs for establishing their right of way along the western dhura of field Survey No. 361 which belongs to the defendant-respondent. The plaintiffs are the recorded tenants of Khasra Nos. 290 and 360 in absolute occupancy right situated at mouza Mohapa, whereas the defendant is the absolute occupancy tenant of Khasra No. 361, in the same village, which adjoins plaintiffs* field Khasra No. 360. These fields admittedly belonged to the family of Tekades and members of the Tekade family seemed to have sold these fields as well as the other fields which belonged to them to strangers. On 30-1-1919 Copal's branch of the Tekade family, according to the plaintiffs, sold fields Nos. 362 and 363 to one Amritrao. Then on 26-1-1930, field No. 361 was sold by Dinkar's branch and Purushottam's branch of the Tekade family to two purchasers Ganpatrao and Abaji. This sale deed is Ex. P-24 on the record. One other field No. 289 belonging to these two branches of the Tekade family was not, however, sold. Now, the purchasers of field No. 361 sold the field to the present defendant on 12-1-1943 by Exhibit P-23 on the record. That is how defendant became the owner of field No. 361. On 18-1-1946 the plaintiffs-appellants purchased fields Nos. 290 and 360 from Shankarrao and Anandrao Tekade by a sale deed which is Exhibit P-l on the record. As a result, the plaintiffs came to be recorded as absolute occupancy tenants in respect of fields Nos. 290 and 360. It is the case of the plaintiffs that they have a right of way to their field No. 360 along the line CD in the plan of the village Mohpa, which would be along the western dhura of the field No. 361 belonging to the defendant. The plaintiffs claimed this right of way by prescription and alternatively as an easement of necessity. It was alleged by the plaintiffs that on 28-8-1946 the plaintiffs were obstructed by the defendant in the enjoyment of this right of way. That is why they filed the present suit on 12-8-1947 for an injunction restraining the defendant from obstructing the plaintiffs' right of way for the purpose of passage of their men, cattle and carts along CD and also for damages to the extent of Rs. 400/ -.

(2.) THE defendant resisted the plaintiff's suit on the ground that the plaintiffs had no such right of way as claimed by them. He denied also that the plaintiffs' user was for the statutory period and was as of right. He also denied that plaintiffs could -use the way on their alternative plea of easement of necessity.

(3.) THE trial Court decreed the plaintiffs' suit holding that plaintiffs had proved their continuous, open and uninterrupted user for a period of more than twenty years ending within two years of the suit and that they had also established their right to use the way as an easement of necessity. The lower appellate Court reversed both the findings of the trial Court. It held that plaintiffs had not succeeded in establishing the acquisition of the right of way by prescription and it also held that the evidence on the record was not sufficient to establish plaintiffs' claim to the suit right of way as an easement of necessity. Accordingly, the decree of the trial Court was reversed and plaintiffs' suit was dismissed. That is why the plaintiffs have come to this Court in second appeal.