GAYADHAR NAYAK Vs. BHAGABAN ROUT

JUDGEMENT

(1.) THIS is an appeal by defendants 1 to 7 against the reversing judgment of the additional Subordinate Judge of Balasore, arising out of a suit for declaration of right of way and for restraining the defendants from putting obstruction on the same.

(2.) THE material facts relating to the plaintiff's case are these : Plaintiff and defendants 8 and 9 own plot No. 2853 and have their homestead and residential house on the said plot. They are also the owners of plots Nos. 2780, 2783, 2784 and 2785 which are situate to the adjacent south of their aforesaid homestead. The suit plots, 2775 and 2773 are also adjacent plots which originally belonged to one Gopinath Naik and were purchased by the father of defendant No. 1 some 12 years prior to the institution of the suit. Another adjacent plot 2772 belonged to one Bana Naik. Father of defendant No. 1 purchased four decimals out of the said plot at the south-eastern corner from the widow of the original owner Bana Naik, rest of which was purchased by defendant No. 4. Plot No. 2766 is a paddy land belonging to defendants Nos. 5 to 7. The public road standing on plot No. 2793 is to the contiguous south of this plot No. 2766. Defendants 1 to 3 own plot No. 2845 to the adjacent east of plot No. 2853 having their residential house on it. The plaintiff's case is that for their mutual convenience and to find out an outlet to the public road on 2793, the predecessers-in-interest of the plaintiff and defendants 8 and 9 on one hand and the father of defendant 1 and the predecessors in interest of defendants 2, 3, 5, 6 and the father of defendant 7 on the other, sometime in the year 1233 V. S. (corresponding to 1926) agreed to carve out a road of the width of 15 links over plots 2784, 2785, 2766, 2776, 2773 and 2772 starting from the homestead plot of the plaintiff and defendants 1 to 3 to the public road and this road being used by the plaintiff and defendants 8 and 9 for more than 20 years as of right and have thus acquired a right of way. On account of strained relations between the parties, defendants 1 to 7 on 4-1-57 demolished the said road, removed earth from the same and threatened to enclose it by a fence. The plaintiff had therefore brought the present suit for declaration of his right of way and also for permanent injunction against the defendants restraining them from putting any obstruction on the said road and also for directing the defendants to reconstruct the road failing which to call upon the defendants to pay a sum of Rs. 100/- to the plaintiff towards the expenses of reconstructing the road.

(3.) DEFENDANTS 1 to 7 denied the agreement of 1926. According to them there was no such road over the alleged plots which were only paddy fields. There was a narrow ridge on the eastern side which was never used as a 'rasta' and as such the plaintiff had acquired no right of way over the same. They further contended that there was no necessity for the plaintiff to use any such passage for going to the public road on the south as the hometead of the plaintiff is connected with the public road by plot No. 2854 situated on the western side of his house. They did not however put forth any plea of permissive user.