RAMCHARAN Vs. RAM ASREY

JUDGEMENT

(1.) THIS second appeal has been filed by the defendants feeling aggrieved by the judgment and decree dated 30th June, 1993 passed by the learned District Judge, Chhatarpur in Civil Appeal No. 1-A/93, whereby the suit of plaintiff has been decreed.

(2.) IN brief the suit of plaintiff /respondent is that he is the owner of house No. 5 situated in village Bamhori, Tahsil Loundi and is also possessing the same. The four boundaries of the said house have been mentioned in the map attached to the plaint. Earlier this house was owned and possessed by plaintiffs father. In the said house there is a door facing on the southern side. Later on, there was a partition in the family of plaintiff and the said house has fallen in his share. The door of the said house opens on the southern side and the open land attached to the said door is being used by plaintiff peaceably in his easementary right as way to go to his house. Except the said land (servient heritage) there is no alternative way available to the plaintiff to go to his house (dominant heritage ). On the southern side of the house of plaintiff, land bearing Khasra No. 38 is of defendants and the distance in between plaintiffs house and khasra No. 38 is 50 feet. The plaintiff uses 29' x 19' land of defendants (servient heritage) as way to go to his house (dominant heritage) for last 40 years. This land (Servient heritage) has been shown as Aa, Ba, Sa, and Da in the plaint map. It has also been pleaded by the plaintiff that the defendants are trying to instal fencing by planting bushes (Bari) on the servient heritage and are also trying to possess the same. The plaintiff opposed and objected the said action of the defendants on the pretext that on account of the said fencing his way and approach to his house will be closed, but the defendants did not agree and are trying to take possession of the servient heritage. It has also been pleaded by the plaintiff that on the said Aa, Ba, Sa and Da land which is on the southern side of his house, he planted trees of lemon, Babool and Chilla. The plaintiff has thus filed a suit for injunction on the basis of the easementary right praying that the defendants be restrained from interfering with the plaintiffs right of easement on the servient heritage and further they be restrained from possessing the servient heritage (suit property ).

(3.) THE defendants, who are 3 in number, filed a joint written statement and pleaded therein that the dominant heritage is neither of plaintiff nor of his father. The said house was never in possession of plaintiff or his family members. The servient heritage has not been ever used by the plaintiff or his father as way. However, they have admitted that they are the Bhumiswami of khasra No. 38 but denied the factum of dis-tance of 50 of the house of plaintiff (dominant heritage) and Survey No. 38. It is further denied in the written statement that servient heritage was ever used by plaintiff as his way nor he carried his cattle from the servient heritage. The land was never used either by plaintiff or his family members as way, therefore, the question of acquiring easementary right does not arise. The disputed property is owned and possessed by the defendants and they have planted the trees on it. It is incorrect to say that plaintiff has planted those trees.