RAGHOBA Vs. ANANDABAI

JUDGEMENT

(1.) 1. A suit was brought by respondent 1, Anandabai, against the appellant and the other respondents for an injunction restraining them from preventing her taking her cattle to her fields along a way, which was shown in the map filed with the plaint, along the boundary of the respondents' field. The suit was dismissed by the trial Court, but on an appeal the Additional District Judge held that Anandabai had a right of way as an easement along the path claimed and reversed the decree of the trial Court and passed a decree ordering the respondents to remove the obstruction and declaring that Anandabai was entitled to go and return from her fields along a passage six cubits in width, as shown in the map attached to the plaint. One of the defendants only, Raghoba, has now appealed.

(2.) THE only document filed was a jamabandi for the village which shows the fields in possession of the parties. Anandabai is admittedly the malguzar of the village, whilst the appellant and the other respondents are tenants o? that village. The fields in possession of the parties are shown in the map which was filed with the plaint. Anandabai's case was that she had been using the way openly and as a right for a long period of years. The respondents denied her right of way or the fact that she had been using the way and pleaded that she went by another way, also shown in the map, to her fields. Oral evidence was adduced by both parties and the case had to be decided on that evidence. The finding being now one of fact on oral evidence, it is doubtful whether there can be any interference in second appeal.

(3.) ANOTHER argument put forward by the learned Counsel for the appellant was that, even if the way had been acquired by prescription, it had not been shown that it had been continuously used up to two years before the institution of the suit, as required by Section 15, Easements Act, and it was pleaded that, at any rate, there was a cessation of user. I would point out, however, that no such plea was raised in the trial Court and in order that such a plea might be raised it would have to be admitted that there was a user prior to the period of two years. Clearly, if there was no user at all, it could not have been exercised within two years before the suit. Nor is there any evidence adduced by the defendant to show that there was any cessation of user. On the other hand Parashram (P.W. No. 1) has clearly deposed that the defendant obstructed the use of the way since 2nd August 1926. The suit was brought on 23rd November 1926, i.e., a little over three months after the obstruction. That evidence has not been contradicted, nor has the obstruction, as far as I can see, even been denied. I hold, then, that there has boon clearly no cessation of user and that if the right was enjoyed, as it has been held by the lower appellate Court to have been enjoyed, it was enjoyed within two years of the institution of the suit.