Indian Kanoon - Search engine for Indian Law

4. The suit was initially filed for injunction, subsequently, by adding paragraph 10-A to the plaint, the plaint was amended, stating that even though an application was filed for the relief of injunction, by mistake of counsel, it was dismissed as not pressed. Taking advantage of that Order, defendants trespassed into the property and put up a way through plaintiffs property and have also fenced on all the four sides. Thus, a portion of the plaintiffs property has been cut and is now in the enjoyment of the defendant. The suit was, therefore, amended as one for recovery of that portion of the plaintiffs property now converted as a pathway.

6. In the additional written statement, they reiterated their contention. The allegation that the defendants trespassed into the plaintiffs property was denied. They said that they have been in possession of the pathway for more than the statutory period.

7. On the above pleadings, trial Court took evidence. Exx. A-1 to A-4 were marked on the side of the plaintiff. Exx. B-1 and B- 2 were marked on the side of the defendants. Commissioner's Report and Plan were marked as Exx. C-1 and C-2. Plaintiff was examined as P.W. 1, and second defendant was examined as D.W. 1. Three other witnesses were also examined on the side of the defendants.

8. Elaborately discussing the evidence, the trial Court came to the conclusion that the plaintiff is the absolute owner of the plaint property and the defendants have no right over any portion of the same. The trial Court said that Exx. A-1 and A-2 are title deeds of the plaintiff by which he came into possession of the entire 23 cents. The trial Court also came to the conclusion that there are other pathways even as per evidence adduced by the defendants. The trial Court also held that the defendants have no right of way and the claim put forward by them on the basis of easement of necessity cannot be accepted. The trial Court also held that the claim of easement by prescription or customary easement cannot be accepted. The trial Court also held that the defendant has trespassed into the plaintiffs property, and in view of the demarcation of a pathway within the plaintiffs property, the plaintiff is entitled to recover the same from the defendants. Cost was also allowed. The Commissioner's Plan Ex. C-2 was also appended to the decree.

18. In the Plan filed by the Commissioner, we find that a public pathway is provided for entering into the land of the defendants and Ors. The said plan has been directed to be appended to the decree. From the plan, it is clear that from the western end, there is an open passage through which the defendants can enter into their property. D.W.4 has also spoken about the other rights of way.

19. Learned Senior Counsel for the appellant submitted that a circuitous route or a way which is inconvenient for use. is not an alternative pathway and, therefore, easessment of necessity could be claimed. The only pleading in paragraph 3 of the written statement is that except the pathway in question, there is no other access to reach the defendants' lands, and not that the other way suggested by the plaintiff cannot be made use of. Even D.W. 1 did not speak in that line.