MUNA DEVI Vs. RAM JHARI DEVI

JUDGEMENT

(1.) Unfortunately for the parties, a suit which was instituted about two decades ago, has not yet come to any final conclusion, and due to one reason or the other, the case got a chequered history. The matter, it seems, unavoidably has to linger further.

(2.) Five sets of persons joined together in instituting the suit claiming a right of easement, both by prescription and necessity, in that, they claimed a right of passage on a certain strip of land belonging to or in possession of the defendants. The suit, in the first instance, was dismissed by the trial Court on 22-11-1949. Title Appeal No. 273 of 1949 was preferred by the plaintiffs from the decree of dismissal passed by the trial Court The appeal was allowed by the Court of the Additional Subordinate Judge on 23-1-1951. The defendants preferred Second Appeal No. 528 of 1951 in this Court. It came up for hearing before Ahmad, J, (as he then was). His Lordship was pleased to refer it to a Division Bench on 21-9-1956. Finally, it was heard and decided on 25-11-1957 by Ramaswami, C, J. and Raj Kishore Prasad, J. Before the said Bench, an argument was advanced on behalf of the appellants that there was no finding by the lower appellate Court that there was use! of the disputed passage by the plaintiffs "as a matter of right". Their Lordships felt the difficulty in deciding the question of law raised before them in absence of a finding by the lower appellate Court upon the question whether the plaintiffs had been using the disputed passage openly and peacefully for more than twenty years "as a matter of right" within the meaning of Section 26 of the Indian Limitation Act, 1908. After having said so in the earlier portion of the judgment, the final order passed in the appeal was in the following terms:

(3.) The appellants filed a petition on 3-5-1967 challenging the enquiry report mainly on the ground that they had no information or knowledge of the enquiry and the ex parte finding recorded in the report should not be accepted. A counter affidavit was filed on behalf of the respondents on 29-7-1967. By order No. 50 dated 8-1-1968, the petition dated 3-5-1967 and the counter-affidavit dated 29-7-1967 were directed to be considered at the time of the hearing of the appeal,