MUSTAFA ALI KHAN Vs. RAMCHANDRA

JUDGEMENT

(1.) THIS is defendant's second appeal against the concurring judgment and decree 2nd dated 9.5.1998 passed by the Addl. District Judge, Jaora in Civil Appeal No. 58-A/1998.

(2.) RESPONDENT filed a suit for declaration of easement of right of way and permanent injunction on allegations that he is the owner of a godown situated in the Old Palace in Jaora. Appellants are the owner of the adjoining open piece of land situated on the southern side of the plaintiff's godown. This is the property in dispute more particularly described in the plaint and the location, description and boundaries are not disputed. According to plaintiff, he had acquired by necessity and prescription easement of right to way to access his godown through the suit property (open piece of land) of the appellant. He was apprehending that appellants would adversely affect the right of way by selling the open piece of land. Hence the suit for declaration and permanent injunction.

(3.) LEARNED counsel assailed the impugned judgment and decree and submitted that Courts below without any application of mind have decreed the suit. He submitted that there is no pleading and evidence in support of the plaintiff's plea of easement of necessity or prescription. He therefore submitted that impugned judgment and decree are liable to be set aside and the suit deserves to be dismissed with costs throughout.