N VENKATA RATNAM Vs. N LAKSHMI

JUDGEMENT

(1.) This Revision petition is filed against the judgment dated 21-7-1995 passed in C.M.A. 10/95 on the file of the Subordinate Judge, Kovvur, West Godavari district

(2.) The plaintiffs are the revision petitioners. They filed the suit for permanent injunction with regard to pathway marked as 'ABCD' in the plaint schedule. They also claimed right of taking water along 'bodi' BBI, LLI and KKI, pending disposal of the main suit. The trial Court after considering the material available on record found prima facie case and balance of convenience in favour of the plaintiffs and the respondents/defendants were restrained from interfering with the right of the petitioners/ plaintiffs for using 10 'width of land as passage in 'ABCD' portion on the eastern side of the respondents' land. The respondents were also further restrained from interfering with the right of taking water from (sic. for) petitioners land along BBI, LLI and KKI 'bodi' from the bore well on payment of electricity consumption charges. Aggrieved by the said order, the defendants carried the matter in Civil Miscellaneous Appeal which ended in their favour. Aggrieved by the said judgment, the present revision petition is filed.

(3.) The admitted facts are that the plaintiff No. 1 and husband of the first respondent are brothers. In oral partition, Survey Number 454/2 was divided equally between the brothers getting Ac. 1-91 cents to each share. The plaintiffs contend that there is no other path except 'ABCD' passage to their land for ingress and egress. The width is of 10' covering the extent of five cents in the land of the defendants. There is also a well through which they have right to draw water to cultivate their land. To ascertain the factual position a commissioner was appointed. The commissioner's report is marked as Ex.C-1 and the plan is marked as Ex.C-2. The Commissioner inspected the land in the presence of both the parties. He did not find any other passage to the land of the petitioners.Of course the commissioner did not find any feasible passage along 'ABCD' but the commissioner's report is clear that it is not possible to take the yokes or carts of the petitioners along AD bund. This conclusively establishes that mere is no passage except the passage in question to go to the land of the petitioners. The trial Court considered the provisions of Section 13 of the Indian Easements Act, 1882 and came to the conclusion that the petitioners are entitled to the passage as easement of necessity.