ARTA SAHOO Vs. BABAJI SAHOO

JUDGEMENT

(1.) A suit was filed by the Appellants for declaration of the easementary right of passage over 7 kadis of land in plot No. 4462 as per the sketch map attached to the plaint and plot No. 4463 measuring Ac 0.007 decimal as per the said map along with a prayer for a decree for permanent injunction against the Defendants.

(2.) ADMITTEDLY , the suit properties along with other property are "GHARABARI" lands and have been recorded jointly in the name of the Plaintiffs and the Defendants, who are the successors -in -interest of the sit land from a common ancestor. The Defendants after appearance and filed their written statement.

(3.) THE parties led evidence and the Learned Trial Court on appreciation the evidence adduced, both oral and documentary has come to the finding that the claim of the Plaintiffs with regard to their right of easement over the passage in question is over the land on which, the Defendants also have title along with the Plaintiffs and a party cannot claim right of easement over his own property. Further, relying on the decision in the case of Usharani Das v. Bhaktahari Moanty, A.I.R. 1984, Orissa 97 wherein, it was held that an easement of necessity is an easement without which, the property cannot be used at all and not merely for reasonable and convenient enjoyment of the property, on analyzing the evidence of the witnesses, came to a finding of fact that the suit passage is not the only passage for ingress and egress to and from the homestead property of the Plaintiffs, as they have purchased the adjacent land, which is by the side of a public road. Hence, the Trial Court concluded that the claim of the Plaintiffs is not also one of necessity.