JAI SUKH Vs. MANOHAR DAS

JUDGEMENT

(1.) The facts, involved in this revision-petition, against a decree of the learned District Judge, Mahasu, whereby an appeal against a decree of the learned Senior Subordinate Judge. Mahasu, was dismissed, are short and simple. The petitioners, petitioners Nos. 2 to 4 being the sons of petitioner No. 1. were residents of village Dalan, Chak Dalan. The respondent was the resident of village Gopalpur, Chak Shawat. The parties owned lands in their respective villages. Orchards had been planted in those lands. The lands, though situated in different chaks, were adjacent to each other. The respondent had filed a suit, against the petitioners, for the issue of a perpetual injunction, alleging that though there never existed any path in the land of the respondent, the petitioners had. in 1958. started passing over the land comprised in Khasra Nos. 484 and 427 and carrying the produce of their orchard, packed in cases, and bringing back empty cases: that on a protest made by the respondent, the petitioners had stopped using the land but they had again started carrying the produce of their orchard through the land, of the respondent, in July 1959; that the respondent had served a notice on the petitioners to refrain from passing over the land but they had persisted in their illegal acts. The respondent prayed that the petitioners be restrained, by the issue of a perpetual injunction, from passing over, and using, the land for carrying the produce of their orchard or for any other purpose whatsoever.

(2.) The suit was contested by the petitioners Their plea, which is relevant for the decision of the revision-petition, was that a path, leading to village Shawat from village Dalan, after passing through the lands of the petitioners and other persons, passed through the land. Khasra Nos. 434 and 427 of the respondent and that the petitioners and other residents of village Dalan had been using the path from times immemorial openly, peaceably and as of right for more than 20 years, for bringing fuel wood, from the forest.

(3.) The learned Senior Subordinate Judge held that a footpath existed in Khasra Nos. 434 and 427 but that, that footpath was the private path of the respondent and not a public path. He, further, held that the petitioners and other residents of village Dalan had been passing over the path for the last more than 20 years and had been carrying fuel wood to the village from the forest, occasionally, but that the path had never been used for transporting the produce of orchard of the petitioners or for any other purpose. In view of his findings, the learned Senior Subordinate Judge granted a decree to the respondent for perpetual injunction, restraining the petitioners from carrying their fruit boxes over the path.