HEERALAL Vs. RAMJEEVAN

JUDGEMENT

(1.) This second appeal is directed by defendants 1 and 2 against the decree of District Judge. Merta dt. Sept. 23. 1975 whereby the District Judge partly allowed the first appeal of Ramjeevan plaintiff filed against the decree of the Civil Judge, Nagore dt. May 1, 1973 and decreed this suit of the plaintiff as against the appellant in the manner that the way to the extent of 3 wide shall be left by the appellant immediately adjoining the plaintiff's house towards its west and that the appellant shall remove the constructions which they had put on 3 wide strip of land for access of the plaintiff to the underground cellar of his house.

(2.) Facts leading to the filing of the second appeal are that on Jan. 10, 1964 Ramjeevan respondent 1 instituted Civil Suit No. 7 of 1964 in the Court of Civil Judge, Nagaur, against the appellants with the averments that the plaintiff owned and possessed a house situated in village Rol, Tehsil Jayal, District Nagaur. It was alleged that on western side of the house of the plaintiff, there was an open chowk land towards which there was one gate of plaintiff's underground cellar. The other gate was closed. Along with the plaint, the plaintiff filed a rough sketch of the site. It was stated that this house had fallen to the share of the plaintiff as a result of partition. Heirs of one Gopilal had been impleaded as defendants 3 to, 5. According to the plaintiff, his predecessor-in-interest had obtained permission on Jeth Budi 7, Samvat 1934, for opening two gates of his underground cellar on the western side of his house at places marked X and Y in the rough sketch. However, only one gate was opened which is marked as 'X' in the rough sketch. The plaintiff and his predecessor-in-interest were using 10' wide land immediately adjacent to his house towards its west as way as of right and without any interruption since last about 86 years, and they had acquired a right of easement of way through this 10' wide land on the west of points A to B of the rough sketch. It was also alleged that this land was also used for feeding pigeon by the plaintiff and his predecessor and other members of the public for the same period. Plaintiff used to reside at Mangal Beda in District Sholapur (Maharashtra) in connection with his vocation and in his absence on Dec. 20, 1963, the appellants constructed a 'kamtha' (shop) on the open land lying on the west of the plaintiff's house. The constructions alleged to have been made by the defendants have been marked as HCDEFG in the rough sketch. The defendants left only 1' 9" wide open land in between the plaintiff's house and the constructions made by the defendant-appellants with the result that the right of way which the plaintiff was exercising not only by coming on foot but also by bringing bullock-carts to the gate marked 'X' was obstructed. The plaintiff, therefore, prayed that 10' wide way on the west of his house may be secured to him as a thorough way and construction made by the defendants-appellants may be ordered to be dismantled by a mandatory injunction and further it may be directed that the land marked ABEF may be kept open by the appellant for the charitable purpose of feeding pigeon on this land. The plaintiff further prayed for a decree of permanent injunction also against the appellants.

(3.) The suit was contested by the appellants. The base of the appellants was that land immediately adjoining to the plaintiffs house towards its west was their 'patta' land on which at present a shop of the defendants was standing. The defendants had left two feet wide land in between the plaintiffs house and their shop so that the defendants may, when they choose to do so, open windows and ventilators and also pass through this two feet wide land. With regard to the underground cellar in the plaintiffs house, it was stated that previously the entrance gate to this underground cellar opened from the side of the plaintiffs house, but recently the plaintiff opened a new gate about 4 or 5 years back opening towards the land of the defendant towards west. It was denied that the defendants (or plaintiffs?) have acquired right of way through the land of the defendants as easement by prescription. The fight claimed by the plaintiff to feed pigeon on the land of the defendants was also disputed. It was admitted that the defendants started constructing 'kamtha'(shop) on Dec. 20, 1963. It was stated that the construction has been completed.