ACHHELAL MAHTO Vs. HARICHAND MAHTO

JUDGEMENT

(1.) This second appeal by the plaintiffs arises out of a suit for of claration of their title to and confirmation of possession or in the alternative for recovery of possession in respect of 1 khata 2 1/2 dhurs of land appertaining to plot No. 1193 of khata No. 49 in village Rampur, Police Station Sarlakhi, District Darbhanga, or for a declaration that the plaintiffs had acquired a right of way over the aforesaid land.

(2.) Briefly stated the plaintiffs' case is as follows:--- It is said that the parties are descendants from the same common ancestor. In the year 1919, the plaintiffs purchased lands of Plot No. 1189 from one Mossamat Somani. This plot is situate immediately north of Plot No. 1193 of village Rampur in the district of Darbhanga. To the south of Plot No. 1193. there is a District Board road running east to west, over Plot No. 1226. Plot No. 1193 belongs to the defendants. Mossamat Somani, it is said, had exchanged 1 katha 2 1/2 dhurs of land of Plot Nos. 1229, 1230 and 1231 with the defendants for an equal area thereof out of Plot No. 1193. This took place in the year 1919, as a result of which the plaintiffs, when, they purchased the land of Plot No. 1189 from Mossamat Somani. became entitled to and came into possession of 1 katha 2 1/2 dhurs of land of Plot No. 1193. The plaintiffs state that they used these lands partly as passage from their house up to the public road over Plot No. 1226 and partly as their Bari and a place to keep their cattle and for them Nads and Khutas. They, therefore, prayed for a declaration of their title to these lands and for possession. They also asked for permanent injunction against the defendants restraining them from interfering with their rights. By an amendment of the plaint, the plaintiffs further made an alternative claim to the effect that if it be found that the plaintiffs had no title or possession as a result thereof over the lands in question, the plaintiffs, having exercised a right of way over the lands since the year 1919, had acquired a right of easement by open and uninterrupted user for more than twenty years, and a declaration to that effect was, therefore prayed for.

(3.) The defendants characterise the story of exchange as a concoction. They deny the alleged title and possession of the plaintiffs over any portion of Plot No. 1193. The plaintiffs' case of user of right of way is also denied. It is said that there is an alternative passage towards the west of the plaintiffs' house which runs north to south and meets the public road on Plot No. 1226 and the plaintiffs are said to have been using this passage in order to come to the public road. It is said that the plaintiffs have closed that passage and want, to create a new route through Plot No. 1193.