OMPRAKASH Vs. VISHNUPRASAD

JUDGEMENT

(1.) The appellants have preferred the present Second Appeal under Sec. 100 of CPC being aggrieved by the Judgment and Decree dtd. 28/11/2022, passed in Civil Regular Appeal No. 26/2017, passed by Second District Judge, Sarangpur, Distt Rajgarh whereby appeal filed by the appellant has been dismissed by affirming the Judgment and Decree passed by the Learned Civil Judge Class-l, Sarangpur, Distt.- Rajgarh in Civil Original Suit No. 19A/2014, dtd. 28/11/2016.

(2.) Facts of the case in brief are that the respondents/defendant had filed suit for declaration of ownership, partition and permanent injunction on the basis of easement rights claiming 29 X 33 Sq. Ft. land in survey no.811, having 0.0009 Hectare, total land, situated in Tehsil Sarangpur, Distt- Rajgarh (Biora). In the plaint the respondent/plaintiff had stated that, they are representative of the Nath community and a 200 years old cemetery (graveyard) of their ancestors is situated in the Sarangpur and for their worship and function they have to use this path to reach at cemetery. But, the father of the defendants/appellants 1 & 2 has moved an application for NOC on the land for the construction in the year 2010 and on that the plaintiffs/respondents have raised their objection but the learned Tehsildar Court rejected the application without completion of the enquiry in influence of the defendants/appellants and a NOC also been obtained by the defendant/appellant. Hence, appellant filed a suit for declaration , partition and permanent injunction.

(3.) In the reply of the plaint, the appellants/defendants no. 1 and 2. denied the facts and stated that the plaintiffs/respondents are not representative of the Nath community and the Map present in the plaint is also not authenticated by any authorized person. It is also mentioned in the written statement that, the way showed in the Map, had never been in existence and earlier in 1994 also there was a dispute with respect to the right of way on the land and was denied at that time also and since then the appellants/defendants continuously denying the way from the land therefore the suit filed by the plaintiff/respondents is time barred. The learned trial court after perusing the pleadings framed as many as 3 issues and out of which 2 were declared proved and on that basis another issue of relief was decided in favour of the plaintiffs/respondents. In the judgment the learned trial court decreed the case and pronounced the judgment permanently restraining the appellants/defendants in the easement right of the plaintiff/respondents.