GULAB CHAND TAMRAKAR Vs. BHUSHAN

JUDGEMENT

(1.) This second appeal had been filed by appellant/defendant- Gulab Chand (now represented by the legal representatives) challenging the judgment and decree dtd. 29/01/1997 passed by Third Additional District Judge, Damoh in Civil Appeal No.17-A/1996, whereby confirming the judgment and decree dtd. 20/02/1996 passed by First Civil Judge Class-II, Damoh in Civil Suit No.46-A/1992, whereby suit for permanent injunction filed by the respondent/plaintiff -Bhushan (now represented by the legal representatives) was decreed holding the passage in question to be a public passage.

(2.) In short the facts of the case are that the original plaintiff-Bhushan Prasad instituted a suit for permanent injunction regarding the passage in question alleging that the plaintiff and other residents are using the passage in question for a period more than 100 years and the plaintiff has acquired right of easement by prescription. It is alleged in para 4 of the plaint that the pavement (Pharshikaran) of the disputed passage (Kuliya) was done 25 years ago by erstwhile Nagar Parishad, Damoh. On inter alia allegations, the suit was filed for restraining the defendant from making any interference in the plaintiff's use of the passage in question by raising construction or otherwise.

(3.) The defendant/appellant appeared and filed written statement denying the plaint allegations and contended that he is owner of the dispute passage (Kuliya), which he purchased from predecessor-in-title namely Banbihari Choubey and the plaintiff is not in use of the said Kuliya. Accordingly, the suit was prayed to be dismissed with exemplary cost of Rs.1,000.00.