GOPAL SARAN AND ORS. Vs. DEVI DAYAL

JUDGEMENT

(1.) THE appellants/defendants have filed this appeal against the concurrent findings of fact recorded by the learned Courts below. The facts of the case may be noticed as follows: - -

(2.) THE suit was resisted and contested by defendants by filing written statement, wherein it had been averred that the plaintiff had suppressed material facts from the Court. In fact, there was a path which starts from Dharampur -Kasauli Road just near the house of Sh. Mewa Lal and goes to the house of the defendants and the plaintiff and also to the temple belonging to defendant No. 5. It was further stated that the said path was in existence from time immemorial and was being used and enjoyed by the owners of the properties adjoining to the land of the plaintiff, by defendants and their predecessors. It was further stated that the said path was in existence for the last more than 30 years which was being used by the plaintiff, his family members, defendants, their predecessors, other owners of the property and also public at large including the devotees of the temple who visit the said temple. It was further stated that the path was certain, definite, ancient, regular and being used by the defendants and their predecessors, defendant No. 5 and the public at large, continuously, peacefully, openly to the knowledge of the public at large, as a matter of right. It was also alleged that the plaintiff had filed the present suit with an intention to get the path closed and to cause obstruction in the user and enjoyment of the defendants and to cause inconvenience to the public at large. It was alleged that the plaintiff wanted that the path should be used exclusively by him. It was further stated that there was a gate of the temple of Defendant No. 5 which was in existence for the last more than 30 years and nobody objected for the said path and the gate till date. It was also stated that there was no other path or possibility of construction or making of any other path to the house of the defendants and thus the defendants have right to use the path in dispute, as an easement of necessity. It was further stated that plaintiff had no right, title or interest to cause obstruction in the user and enjoyment of the said path. It was further stated that no loss or injury would be caused to the plaintiff in case the suit is dismissed and prayed that the suit of the plaintiff be dismissed with cost. The learned trial Court vide orders dated 18.12.1996 framed the following issues: - -

(3.) AFTER recording evidence, the learned trial Court decreed the suit. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants preferred an appeal before the learned lower Appellate Court and the same also was also dismissed. Undeterred, the defendants have preferred the present appeal.