DEVILAL Vs. HAMID SHAH

JUDGEMENT

(1.) This judgment shall dispose of the aforesaid second appeal, which has been filed by the appellants, who were the plaintiff in the Lower Court. The suit filed by the appellants 91-A/94 was decided in favour of the plaintiff but in first appeal filed by the respondent as Civil Appeal No. 26-A/95, the judgment of the Lower Court was reversed. In the Lower Court, the appellant-Devilal filed a suit for injunction to the effect that the house of the appellant was located in ward No. 4 Uparwali Toli and the house of the respondent was located at some distance. In between the two houses, there was a way going through Government open land and the said way used to be utilised by the plaintiff as well as the people in the Mohalla, but the respondent wanted to create obstruction in the aforesaid area, who got a sale deed of the portion of the land in their favour, even though the Anjuman Tanjuman Islam Committee, who had executed sale deed in their favour had no right to execute the sale deed. Since then, the respondent wanted to obstruct the passage leading to the house of the appellant by causing obstruction in the light of easement sought with respect to the user of the passage. As such, the appellant filed the suit for injunction.

(2.) The suit for injunction filed was decreed in favour of the appellant by the Lower Court but in the first appeal the judgment was reversed. The First Appellate Court framed the following issues at the time of deciding the appeal and answered both of them against the appellant:--

(3.) The Trial Court by holding that no relief of easement was sought for by the appellant in his plaint and, therefore, he was not entitled to the relief. It was also held that since there was an averment that there was user of the land even by the people for which there was no such averment in the plaint, the appellant was not entitled to the relief as claimed and therefore, reversed the judgment. The relevant paragraphs of the impugned judgment are as under:--