DEEP CHAND SAO Vs. KASTURI DEVI

JUDGEMENT

(1.) This second appeal arises out of a suit for a declaration of a right of easement over certain lands and for a permanent injunction restraining the defendants from interfering with the exercise of the said right.

(2.) The plaintiff's case, shortly stated, is as follows. The first plaintiff had purchased in the year 1944 the lands of plot No. 622 of mauza Daulatpur Abdul Chak which is situated south of a road going from Jehanabad to Arwal. In between the road and the aforesaid plot there are the Chant lands of the road and plot No. 622 which was purchased by the defendants in the year 1959 from one Hari Prasad Khetan, a relation of the first plaintiff's husband Murlidhar Khetan. The said plaintiff's husband Murlidhar had founded a high school which was situated at another place in the town of Jehanabad. The school could not get recognition owing to lack of accommodation. The first plaintiff, therefore, made her plot available for the construction of a building for the school. The construction was taken up and it had proceeded to chest height. In order to facilitate the construction of the school Hari Prasad Khetan had granted permission for taking of bricks and other materials by men and bullock-carts from the road to the site in plot No. 622 through his own plot 624. The width of such a passage was 18 feet east to west. The house of defendants 4 to 6 is situated on the eastern side of the said passage while defendants 1 to 3 are the purchasers of the land in the western side of the said Rasta. It is said that while the construction of the school building was in progress the defendants began to raise objection to the use of the aforesaid passage and they also wanted to construct a wall in order to close the passage. As a result there was a proceeding under Section 144 of the Code of Criminal Procedure. It is further said that there is no passage from Arwal Road leading to the school and hence the plaintiffs have acquired the right of easement of necessity over the disputed lands of plot 624 and that the defendants have no right to interfere in the exercise of the aforesaid right. Hence the suit.

(3.) Defendant No. 2 who contested the suit alleged that he and the third defendant had purchased 9 decimals of land of plot No. 624. According to them the construction in plot 622 had gone upto the waist height only but was stopped by the plaintiffs themselves for reasons best known to them. They also said that the plot of the plaintiffs can be reached through ridges of other fields and through a Pind connecting the road to the plot. It has also been denied that Hari Prasad had allowed any right of passage or that the plaintiffs had ever exercised any right of passage.