BRAHAMA KUMARIS ISHWARIYA VISHWA VIDAYALYA Vs. DEV PARKASH

JUDGEMENT

(1.) The plaintiff filed a suit for permanent injunction restraining the defendant from obstructing and also for mandatory injunction directing the defendant to remove obstruction raised by them in front of the doors of the northern wall of the plaintiffs land. The trial Court dismissed the suit on the ground that the passage alleged to have been enjoyed by the defendant for about 60 long years was not established. Ultimately, the suit was dismissed. But the First Appellate Court in the appeal preferred by the plaintiff observed that there had been two old gates on the northern wall of the plot of the plaintiff to go through the property of the defendant and that, therefore, the plaintiff was entitled to protect his easementary right. Ultimately the First Appellate Court decreed the suit for permanent injunction. The following substantial questions of law in the presence of the learned counsel appearing on either side were formulated:-

(2.) The learned counsel appearing for the appellant-defendant would vehemently submit that the First Appellate Court has completely misread the evidence on record. Even when the predecessor in interest was not examined by the plaintiff, the First Appellate Court has held that the plaintiff had got easementary right over the property of the defendant-respondent. He would also submit that without a prayer for declaration of easementary right the question of granting any relief for permanent injunction based thereupon would not arise.

(3.) Per contra, the learned counsel appearing for the respondent-plaintiff would submit that though the plaintiff had not examined the predecessor-in-title of the plaintiff, he had chosen to examine the other witnesses to establish the usage of the property of the defendant as a passage. It is his submission that the First Appellate court has rightly analysed the evidence and decreed the suit for permanent injunction.