Decided on June 27,1978

Executive Officer, Notified Area Council Appellant
Kotini Krishnatnurty And Partners And Ors. Respondents


R.N. Misra, J. - (1.) THE sale Defendant has carried this appeal against the affirming judgment and decree of the learned Additional District Judge of Ganjam in a suit for mandatory injunction directing the Defendant to remove the extended portion of the cattle pound as specified in the plaint schedule.
(2.) PLAINTIFF is a registered firm represented by three of its partners. Abutting National Highway No, 5 running through Rambha Town, the Plaintiff -firm owns a building the back portion whereof was being used as a godown for storage of mercantile goods. There used to be a big gate on the back side towards the north -end providing direct access to the public road known as Baurisahi or Kandarasahi Road. The cattle pound of the Defendant stood adjacent to Plaintiff 's land on the north and by its side was the opening into the Plaintiff 's land as indicated above. The Defendant extended the pound on the further north as shown in blue in the plan. The extended portion affected the Plaintiff 's right of passage from the back gate into its vacant site. Plaintiff resisted its right of way having been affected by mandatory injunction on 11 -11 -1969 on the allegation that the right was interfered with in February of that year. In the written statement, the Defendant contended that there lay a vacant strip of Taram land between Baurisahi road and the Plaintiff 's land on the west. There was a cattle pound on a portion of the Taram land for several years and long prior to the construction of the Plaintiff 's house. With the sanction of the Collector of the district, the pound has been extended on the northern side. The existence of the back gate as alleged was admitted. but it was contended that it came into existence at the time the building was erected, but it was not put to any use and normally kept closed. The claim of easement was seriously challenged. It was pointed out that the Plaintiff 's building opened into the National Highway with direct access from the public road into it. Plaintiff 's house was constructed within 15 to 16 years prior to the suit and the Baurisahi road came into existence only in 1967. The claim of uninterrupted use for more than thirty years was thus denied as baseless.
(3.) The learned Appellate Judge examined the entire evidence again and came to hold that the Plaintiff 's claim of user from 1935 of the passage bad been established. He found the user to be more than 30 years prior to suit land thus the claim of easementary right of passage had been established. Accordingly, he affirmed the decree and dismissed the appeal. The concurrent findings of the Courts below are assailed in this second appeal.;

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