RAWAJI GOKKAL KULMI Vs. KESHAV RAMJI KULMI

JUDGEMENT

(1.) THIS is a defendant's second appeal. The dispute relates to right of way through land Khasara No. 236 in Mouja Dohad which is in the possession of defendant No. 1 Rawaji but stood in the revenue papers in the names of defendants 2 to 5. The right of way is claimed by the plaintiff Keshav whose house is situated at the southern end of Khasara No. 236. The plaintiff claims the right for going from his house through Khasara No. 236 of Rawaji and also through Khasara No. 242/2 which stood in the name of defendant No. 6 Udhav to the land which stood jointly in the name of plaintiff and his brother Kasana but which had been in his exclusive possession for the last 30 or 32 years and bore Khasara Nos. 242/1 and 243/1.

(2.) THE plaintiff's case is that this right of way starting from the door of his house opening in Khasara No. 236 and passing through Khasara No. 242/2 towards his land Khasara Nos. 242/1 and 243/1 had existed from the time of his ancestors for the last 50 or 60 years as an easement and as of right and that consequently it had crystallised into an easement. The defendant however had obstructed the same by raising wooden barrier across the borders of Khasara Nos. 236 and also of 242/2 which adjoined Khasara No. 236 thereby preventing the plaintiff the use of the way for reaching his Khala in Khasara Nos. 242/1 and 243/1. This was done by defendant No. 1 sometime in May 1953. The plaintiff therefore claimed a declaration regarding this right of way, for a mandatory injunction for the removal of obstruction caused in it by defendant No. 1 and for a permanent injunction restraining all the defendants from interfering with this right. Plaintiffs brother kasana supported the plaintiff's claim. The case proceeded ex parte against defendants 2 to 6.

(3.) THE only defendant who resisted the plaintiffs claim was defendant No. 1 rawaji. He denied that the plaintiff has any right of way through the Northern door of his house through his Khala bearing Khasara No. 236. It was denied that the plaintiff and his ancestors used to pass through his Khala and through that of udhav to his Khala Khasara Nos. 242/1, 243/1 so as to crystallise into a right of easement. It was asserted that the way of the plaintiff is from his Southern door by a public way. According to the defendant a small door on the Northern side of his house had been kept with the permission of the defendant's father Gokul and the plaintiff used to pass on foot, through the Khala of defendant No. 1 during gokul's life-time. This was due to the fact that the relations between Gokul and the plaintiff were cordial. After Gokul's death five years before the suit this way was stopped by raising wooden fencing. The defendant No. 1 therefore contended that the plaintiff had neither any right nor was the claim within limitation. Plea regarding misjoinder of parties and causes of action was also raised.