BHAWANI SINGH Vs. KARAN SINGH

JUDGEMENT

(1.) The present second appeal has been preferred against the judgment and decree dtd. 21/8/2018 passed by the Additional District Judge, Jaitaran, District Pali in Civil Appeal No.07/2013 whereby the appeal against the judgment and decree dtd. 31/5/2013 passed by the Civil Judge (Junior Division), Bar, District Pali in Original Civil Suit No.31/2007 has been dismissed and the judgment of the trial Court decreeing the suit of the plaintiffs for declaration of easement of way and permanent injunction has been affirmed.

(2.) The plaintiffs preferred a suit for declaration of easement of way and permanent injunction against the defendants. Along with the plaint, a site map was annexed which was exhibited as Ex.1. It was averred by the plaintiffs that the way marked as [XXXXXXX] and further [XXXXXXX] in the map, though not recorded as public way in the revenue record, was used by the plaintiffs and the defendants as a way, since years. It was averred that the property in question was obtained by the defendants in some execution proceedings initiated against ancestors of the plaintiffs and at that point of time too, the way [XXXXXXX] and [XXXXXXX] existed on the site and as per the mutual consent, it is being used by all the parties since centuries. It was therefore, prayed that it may be declared that the plaintiffs have a right of easement qua the said way and the defendants, who were trying to obstruct the said way, be restrained from the same.

(3.) The case of the defendants was that there was an alternative way available to the plaintiffs to have access to their agriculture fields and therefore, they cannot claim right of easement qua the way in question. It is relevant to note that the defendants did not deny the factum of existence of the way [XXXXXXX] and [XXXXXXX] which ran across their fields.