PURSHOTTAM BHAICHAND Vs. KASTURBHAI LALBHAI

JUDGEMENT

(1.) In this case the plaintiffs sued to obtain a perpetual injunction against the defendants, restraining the defendants from obstructing them or their men, carts and ploughs while passing through the passage in suit.

(2.) The plaintiffs are the purchasers of Survey No. 118-B. To the north of Survey No. 1 08-B there is Survey No. 118-A owned by the Saraspur Manufacturing Company, Limited, now in liquidation, defendant No. 1 being appointed the liquidator. But the survey numbers originally belonged to one Chhagan Jhaver and his two sons. Chhagan Jhaver sold Survey No. 118-A to one Panachand Gopal in 1902. Panachand's daughter sold it to one Lalbhai Sheth on June 28, 1907, by Exhibit 40. The interest of Lalbhai was conveyed to the Saraspur Manufacturing Company on May 31, 1924. The plaintiffs purchased Survey No. 118-B by Exhibit 23 dated July 9, 1904. In the sale-deed passed to the plaintiffs there is a recital as follows :- The owner of this field has got a way through the field of Panachand Gopal (through survey No. 118-A at present belonging to the Saraspur Manufacturing Company, Limited) for the purposes of taking his plough, carts and bullocks and for passing and re-passing of his men. He has got a right to pass and repass through the same for ever.

(3.) The learned Subordinate Judge held that the plaintiffs proved the right of passage over the said site for more than twenty years, were, therefore, entitled to the injunction sought and passed a decree in favour of the plaintiffs. Before the learned District Judge it was not disputed that there was a right of way to Survey No. 118-B over Survey No. 118-A, but he found that the burden of the easement was increased by the new use to - which the respondents put the dominant tenement Survey No. 118-B, by building chawls on the land, and that the right of way over Survey No. 118-A was for cultivation only, and modified the decree of the lower Court by addition of the words :- But the plaintiffs are not entitled to a right of way for any other purpose but for the cultivation of survey No. 118-B and for the passage of men, bullooks, ploughs and carts for this same purpose.