KANJI Vs. UDIYA

JUDGEMENT

(1.) This second appeal by contesting defendants Kanji S/o Pirag, Sukhdeo S/o Kanji and Manubai Wd/o Pirag, defendants Nos. 1, 3 and 4, was by order dated 1-7-1981 admitted on the following substantial questions of law: -

(2.) Plaintiff Udiya originally filed suit against defendants Kanji, Jagdish, now respondent No. 2, and Sukhdeo claiming declaration that he had easementary right of way for himself, his labourers, his bullock cart and cattle over Khasra Nos. 184, 185 and 186 at village Bhogdad for access to his Bhumiswami lands Khasra Nos. 166/2, 167, 174, and 169 at village Bhogdad Tahsil Manawar District Dhar, and for mandatory injunction against the defendants to remove the obstruction and fill the pits dug by them in the way and further restraining them from interfering with the right of way of the plaintiff over the same, compensation Rs. 50/- and further compensation till the obstruction was removed. The plaintiff's case briefly stated was that he is Bhumiswami of Khasra Nos. 166/2, 167, 174/169 and 170 /2 at Village Bhogdad Tahsil Manawar District Dhar. The defendants are Joint Hindu Family with defendant Kanji as Karta. Defendants own and possess at village Bhogdad Khasra Nos. 184 and 185/1 Tahsil Manawar, District Dhar. The plaintiff from times immemorial has been exercising right of way in respect of himself, his bullock cart and cattle and his labourers over Khasra Nos. 184 and 185/1 which further enters into Khasra No. 186 and then as access to plaintiff's land. The plaintiff has been exercising this right for more than last 40 years peacefully and without obstruction. The path or way is 9 ft. broad and is shown in the map forming part of the plaint in red 'Aa' to 'A'. On 18-6-74 the defendants Nos. 1, 2 and 3 obstructed the plaintiff from exercising this right, dug out pits in the way and put earth there on and challenged easementary right of way acquired by the plaintiff. The plaintiff, therefore, 8-11-1974 filed suit against the three defendants, Kanji, Sukhdeo and Jagdish.

(3.) Defendant No. 2 Jagdish did not file written statement and was proceeded ex parte. Defendants Nos. 1 and 3 Kanji and Sukhdeo in a common written statement denied the plaintiff's claim that he was the owner of 5 Khasra numbers at village Bhogdad as claimed or that he had acquired easementary right over the Khasra Nos. 184 and 185/1 as claimed. They denied having created any obstruction. In the special pleadings it was urged that Manubai, who was then not a defendant, was a recorded owner of Khasra Nos. 184 and 185/1, was a necessary party to the suit and failure to implead her as a party was fatal to the suit. The plaintiff had other alternative access to his land. Necessary pleadings for claiming easementary right of way were not there. The defendants took up some other pleas which are not very material for the present appeal.