RAMCHANDRA VASUDEV VIJAPURE Vs. ANANT LAXMAN THAKAR

JUDGEMENT

(1.) The plaintiffs sued for a declaration that they had a right of way over the plaint bol (passage), and for an injunction directing the defendants not to obstruct the sweeper (bhangi) of the plaintiff's coming through the bol to cleanse the plaintiffs privy, the plaintiff's alleging that the sweeper had been using this bol for cleansing plaintiffs privy for a period of more than twenty years so as to give the plaintiffs a right of easement for such user, and that the defendants had Wrongfully obstructed the enjoyment of such right by putting up a door frame at the-north and of the bol blocking the; passage some time about March 1921.

(2.) The lower Court dismissed the suit, finding that, even from plaintiffs evidence, Exhibit 63, it was clear that, though not a regular passage, there was no other open space over which the sweeper could pass to the plaintiffs privy for cleansing it that there had clearly been obstruction in the alleged enjoyment by the plaintiffs, but that as the date of obstruction given by a witness showed that plaintiffs had post-dated the cause of action when they described it as taking place in March 1921, and as the obstruction really took place in 1918, the Suit was barred.

(3.) The appellate Judge on the question, of limitation said: As regards the second point, it was not set up by respondents and no issue thereon was framed prior to the hearing. The issue appears to have, been framed by the learned Subordinate Judge at the time of writing the judgment as the result of a remark by appellants witness, Exhibit 67. That witness says that the sweeper was obstructed five or six years ago. This obstruction was apparently by word of mouth and is not the obstruction complained of in the plaint. Exhibit 67 was examined in Juno 1924 and the suit was filed in April 1921, so if the obstruction took place five, and not six years before his examination, there would have been no interruption more than two years before the date of suit. Further it does not appear that the obstruction ended in cessation of the user at all. The witness implies the contrary.