NEPAL CHANDRA SAHA Vs. NIRMALA PAUL AND ORS.

JUDGEMENT

(1.) THIS is an appeal filed by the Plaintiff against the decree of the appellate Judge dismissing their suit for declaration of their easement right and for perpetual injunction restraining Defendants from obstructing them in passing over a path way situated to the adjacent cast of their home -stead which Plaintiff No. 2 purchased from the Defendant No. 1 Anath Bandhu Paul on 2 -5 -1965 A.D. by dint of a registered kabala.

(2.) THE facts found are that the Plaintiff filed the suit after obtaining permission of the court according to the provisions of Rule 8 Order 1 of Code of Civil Procedure and they filed the suit for declaration of their right of easement, namely right of passing over a strip of land described in the plaint and for an injunction for removal of certain obstruction placed by the Defendants 1, 2 and 3 on that path -way. Plaintiff's case was that from time immemorial the passage was being used as path way by themselves and the people of the locality for egress and ingress without interruption and openly as of right, for over 50 years. They also claimed this path -way as an easement of necessity us there is no other way to go out of their houses. It was alleged in the plaint that the Defendants 1, 2 and 3 illegally blocked the path -way by constructing a hut and also putting fencing at two portions portrayed in a hand sketch map appended under fourth schedule of the plaint.

(3.) THE Defendants filed separate written statements denying the allegations in the plaint. The substance of the defence is that there was no path way as claimed by Plaintiffs. It was stated that the land stated to be path way was actually a grave -yard.