JANAB MEHAMMED AYUB Vs. JANAB MEHBOOB SHARIFF

JUDGEMENT

(1.) The plaintiff is the appellant herein, who seeks to assail the judgment and decree dated 3-12-1991 passed in A.S.No.108 of 1988 on the file of the III Additional District Judge, Visakhapatnam in allowing the appeal of the respondents-defendants as against the judgment and decree dated 24-3-1988 passed in O.S.No.485 of 1985 on the file of the IV Additional District Munsif, Visakhapatnam. In the suit, the plaintiff-appellant sought for declaration that he is the absolute owner of the area shown in stripes in the plaint plan measuring 50 Sq. yds., and for consequential perpetual injunction restraining the defendants their men from interfering with the possession and enjoyment of the suit schedule property and further for mandatory injunction directing the defendants to remove all the escalated earth debris and building materials dumped by them on the site. The case of the plaintiff in brief is that he is a purchaser in pursuance of a registered sale deed dated 21-3-1978 to an extent of 210 sq. yds. which is in possession and enjoyment thereof. However, the defendants are falsely claiming the suit path way and started making constructions thereon. Further, the defendants have their own individual path way through passage between their houses and immediately adjoining their house leading to the municipal road to the South. Therefore, there is no subsisting easementary rights now and any easementary rights which existed earlier, ceased. Hence, the suit. Contesting the suit claim, the defendants totally denied the claim of the plaintiff stating that he has absolutely no such rights. Further evidently the title deeds of the defendants clearly show that the defendants are having easementary rights over the passage. Therefore, the claim is wholly unsustinable. After framing of the issues, during the course of the trial, the plaintiff examined P.Ws.1 and 2 and marked Exs.A-1 and A-2. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B-1 and B-2, and Ex.X-1 and X-2 were marked. On a consideration of the evidence and material available on record, the trial court decreed the suit holding that the defendants have no easementary rights of necessity to go through the site of the plaintiff and they have got a substitute adjacent to their house which leads to the Eastern and Western roads of the Municipality. In appeal filed by the respondents herein, the court below on a consideration of submissions made on either side, restricted its consideration only to the documentary evidence excluding the oral evidence and held that there exists an easementary right in respect of the said passage and the same cannot be interfered with by the plaintiff and thus allowed the appeal dismissing the suit of the plaintiff.

(2.) Sri V. Parabramha Sastry, learned counsel appearing for the appellant submits that the lower appellate court while considering the question in issue as to the existence or non existence of the easementary rights, has entirely excluded the oral evidence which is not correct more so when the case of the appellant is that even a right existed at any time earlier, the same has been extinguished in view of subsequent events and circumstances.

(3.) On the other hand, Sri C. Subba Rao, the learned counsel appearing for the respondents submits that the lower appellate court has rightly taken into consideration the positive material on record to show the existence of the easementary rights, the findings of which cannot be disturbed in the appeal.