RAGHUNATH NAIK Vs. MADAN MOHAN NAIK

JUDGEMENT

(1.) THIS is an appeal by the defendant who was unsuccessful in the Courts below. The dispute in this litigation relates to a narrow strip of land measuring 0. 005 acre situate in plot No. 803/1 in mouza Bhedabahal under Sundergarh Police Station. The position of the land is indicated in red lines in the sketch map attached tp the plaint. This narrow strip of land is claimed as a passage connecting the residential house of the plaintiff standing on plot Nq. 802 to the public road on the east being plot No. 800.

(2.) THE parties are related to each other. Defendant's paternal grand-father mukund is the elder brother of the plaintiff Madan Mohan. In the year 1915, there was a partition between the two brothers. At that time a common Pas- sage known as Khajurtal Bat was kept apart by both the brothers to be used as a passage for both of them, from the public road to their residential houses. Subsequent thereto, there was a partition between Mukundaram and his son narendra. At the time of that partition they closed the passage Khaiurtal Bat partly and instead of it opened another passage called Guhal Bat for use of the plaintiff and defendant's father Naren-dra. According to the plaintiff, in the year 1939 this passage Guhal Bat was closed by the defendant and a new passage -- which is the disputed passage in this case -- was opened. The plaintiff claims that ever since 1939 he had been using this narrow strip of land as a passage as of right and thereby acquired a prescriptive right thereto. Complaining that in the year 1964, the defendant by constructing a brick-wall across the passage has interfered with the plaintiff's right to use the disputed land as a passage, the latter instituted the suit giving rise to this appeal for issue of a permanent injunction restraining the defendant from blocking the passage and for a direction that he should remove the brick-wall.

(3.) THE defendant in his written statement opposed the plaintiffs claim on several grounds. According to him, the suit land does not connect the plaintiff's house with the public road and that the plaintiff has never been using this as a passage as there is an open piece of land adjoining his house which is being used by him as a passage. In the year 1950, the defendant instituted a suit T. S. No. 63 of 1950 in the Court of the Mun-sif, Sundergarh against the plaintiff for declaration of his title to and possession of plot No. 803/1 and for an order of injunction restraining the present plaintiff from using any portion of that plot as a passage. The trial Court decreed the suit in favour of the plaintiff but subject to the present plaintiff's easementary right on the disputed land. On appeal (T. A. 30 of 1951)filed by the present defendant, the easementary right claimed by the plaintiff was negatived and a decree as prayed for in the plaint was passed in defendant's favour. In pursuance of the decree so obtained, the defendant took delivery of possession of the disputed land through Court on 30-12-1962. In these circumstances, it is pleaded that the plaintiff's claim in the present litigation is barred by principle of res judi-cata.