SAYRABAI Vs. AHMEDJI

JUDGEMENT

(1.) This is an appeal by the defendants from a decision of the Additional District Judge of Ujjain confirming the judgment and decree ot the Civil Judge, Second Class, Ujjain, whereby the defendants have been restrained from interfering and disturbing in any way the plaintiff's right ot way over a piece of land belonging to the appellants.

(2.) The plaintiff's case as originally laid, was that he and the defendants were owners of adjacent houses; that in between the houses there was a joint piece of land over which he had a right to pass and repass; that the defendants were interfering with his right of using this land; and that, therefore, it should be partitioned and he be put in possession of his share. During the pendency of the suit, the plaint was amended and the plaintiff alleged in the alternative that if the land in question was held to be the exclusive property of the defendants, then he had a right of way over the kind and that, therefore, the defendants should be restrained from interfering with his right of passage over the land. The defendants denied that the land was joint property. They claimed that the land belonged to them only and that the plaintiff had no right of way over the land.

(3.) At the trial, the plaintiff first led evidence to show that he was using the land as a passage in his own right as a co-owner. Alter amending the plaint, he tendered evidence to show that he was using the land for passing for over twenty years. Both the courts below found this evidence of user as sufficient to prove the right of way claimed by the plaintiff and decreed his claim accordingly. The defendants have now preferred this appeal.