SHIVDAS & ORS. Vs. GANESHIBAI JAGWANI

JUDGEMENT

(1.) The plaintiffs have preferred this appeal against the dismissal of a suit by the Appellate Court while reversing the judgment and decree passed by the Trial Court, "The plaintiffs alleged that the houses of parties were situated in Ward No. 12, Nagar Palika Nigam, Lashkar, near Roxy Cinema Gali, Kampoo Road, Lashkar. The door of plaintiffs house No. 444/1, Ward No. 39 reopened in North and in front of it the defendant had her open land and Chabutara shown in red colour in the map appended to the plaint. Chabutara has been shown by letters A, B, S & D, while the open land by letters Ka, Kha, Ga, Gha. The plaintiff and family members used the land Ka, Kha, Ga, Gha, as their Rasta for more than 40 years without any obstruction as easement and were also using Chabutara A, B. S & D. On the door of the plaintiffs there were 3 long Tode and Chhajje. The previous owner of the defendants house Pehalwan singh had sought permission for construction of house from the Nagar Palika Nigam but it was refused. Again in defendant sought permission which too ,refused by the order dated 12.6.1975. If the defendant raised construction it would stop plaintiffs air and light. The defendant had raised construction after leaving 2 feet land in front of door. They, therefore, sought relief of permanent injunction restraining the defendant from raising construction over disputed Rasta and Chabutara. The defendant denied the fact that the plaintiffs had opened door in North as claimed. She alleged that the door was opened forcibly in order to file the suit. The plaintiffs had no right of easement as claimed. The suit was liable to be dismissed. The learned trial Court after considering the material on record decreed the suit but the decree passed by it was reversed by the learned Appellate Court and the suit was dismissed. Whereupon the plaintiffs have preferred this appeal.

(2.) The contention of the learned Counsel for the appellants is that originally the suit was decreed and the decree was reversed by the Appellate Court but this Court by order dated 14.9.1988 remanded the case. Again the plaintiffs suit has been dismissed by the Appellate Court. He contended that the learned Appellate Court has mis-read the oral evidence on record. The evidence on record clearly proved the right of easement. The plaintiffs' witnesses have specificallyproved the user of the disputed land as Rasta for more than 40 years and the findings of the learned Appellate Court are contrary is incorrect.

(3.) On the other hand, it has been contended that the plaintiffs have not been able to prove that there was any Rasta or door existed as claimed. The learned Appellate Court critically examined the evidence and held that the plaintiffs had failed to prove their case. This finding cannot be interfered with by this Court.