ROHAN MAHTO Vs. RAM CHANDRA PRASAD

JUDGEMENT

(1.) THIS second appeal is filed by defendants 2 to 5. A suit was filed by the plaintiffs for a declaration of their right, title and interest over the plaint A Schedule property; for a declaration of the right of easement of the plaintiffs for their exit to the Hirak Road land in the western boundary of the plaint A Schedule; for a mandatory injunction directing defendants 2 to 5 to demolish the construction allegedly illegally put up by them over Hirak Road land, blocking the passage of the plaintiffs from their house and for consequential reliefs.

(2.) THE plaintiffs claimed to be the owners of plaint A Schedule on the basis of a purchase from defendant No. 1. Puran Mahto. Their case is that they constructed a residential building in that plot of land, facing west and they had an exit from their house to the Hirak Road lying west to the Schedule A property. Defendants 2 to 5 put up some construction on the western side of plaint A Schedule property at a distance of two feet from Schedule A property and this has resulted in obstructing the exit of the plaintiffs to the Hirak Road. In paragraph 12 of the plaint, it was pleaded that there was no other land in between the Hirak Road and the suit land. The hut erected by the defendants In front of the door of the plaintiffs was over the Hirak Road land and the plaintiffs have full right to use the said land as their passage. They had a right of easement over the suit land. The construction made by the defendants over the said Hirak Road land was liable to be directed to be removed.

(3.) ON these pleadings, two questions that arose were whether the plaintiffs have pleaded and proved a right of easement, to sustain the claim for the relief of mandatory injunction based on Sections 32, 33, 35 and 36 of the Indian Easements Act, 1882. and whether the plaintiffs have made out a case for relief on the basis that the construction made by the defendants was on the road margin or on the road itself and are the plaintiffs not entitled to have ' the blocking of their exit to the road got removed. Though a Pleader Commission was issued and his report was marked as Ext. 3,1 find that the Pleader Commissioner has not even prepared a sketch indicating the lie of the land and has not specifically reported whether the construction by defendants 2 to 5 was on the road margin or in a property that lay in between the Hirak Road and the property of the plaintiffs. The trial Court decreed the suit presumably on the basis that since the defendants have not proved the title over the land where the construction has been made and the right of passage of the plaintiffs to Hirak Road has been blocked, the plaintiffs are entitled to a decree. It may be noted that the right of the plaintiffs Bulaki Ram Versus Jatru Mahali over plaint A Schedule, though sought to be disputed, was no seriously challenged by the defendants. On appeal by defendants 2 to 5, the lower appellate Court, on the basis of some oral evidence, proceeded on the assumption that the construction has been made by the defendants on the road margin and, consequently, the construction was liable to be removed since the construction blocked the right of passage of the plaintiffs to the road. Thus the appeal was dismissed and this second appeal is filed challenging the said decree.