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3.The defendants contested the suit admitting that under the partition deed dated 25.03.1985, the brothers have divided the properties under respective schedules. The “ABCD” pathway is earmarked as common pathway. However, the width of the pathway at 'B' and 'C' point is only 17 links. It was not expanded to '23' links at 'C' point and '20' links where the common well is located as alleged in the plaint. The width of the common pathway at all points always been 17 links. At no point it was extended. The defendants never prevented the plaintiff from using the common pathway or drawing water from the common well in turn.
6.The trial Court, on considering the evidence let in by the parties and the Commissioner Report, allowed the suit holding that at the turning point marked as 'BC' the width of the pathway is above 17 links and demarcation of boundary with stone indicates that the parties have expanded the pathway at the turning point 'BC'. The Commissioner Report and Sketch, which show the width of the pathway at 'BC' point is 28 links and 27 links, the trial Court held that, the parties on their own accord had expanded the pathway at the curve to have a smooth negotiation and it is for the convenience of all the sharers. Hence, the trial Court allowed the suit as prayed for. Regarding the use of the common well, the defendants themselves have stated that they never disturbed the plaintiff from enjoying the same as a co-owner. So, the trial Court also granted injunction regarding the well.
9.Aggrieved by the first appellate Court judgment confirming the judgment and decree of the trial Court the second appeal is filed.
10.In the second appeal, the learned counsel appearing for the appellants would submit that the Courts below have failed to properly appreciate the law relating to easement. The right of common pathway came into existence only under Ex.A1, which is a registered partition deed among the brothers entered on http://www.judis.nic.in 25.03.1985, wherein the width of the pathway is mentioned as 17 links. When it is established by the defendants that as per the terms of partition, the width of pathway can only be 17 links and not more than that, the plaintiffs cannot claim right of easement for a larger width, which should be prescribed by peaceful and open enjoyment by more than 20 years. Whereas the common pathway came into existence only after the partition deed of the year 1985 which is obviously less than 20 years.
12.The learned counsel appearing for the respondent would submit that the http://www.judis.nic.in Courts below on considering the evidence and on facts, had arrived at a concurrent finding that the plaintiff cannot be disturbed from using the common pathway marked as 'ABCD', The variation of width of the pathway on the curve of the pathway was for easy negotiation. The appellants attempt to narrow the pathway cannot be entertained.