LOKNATH TEWARI Vs. JADUNANDAN TEWARI

JUDGEMENT

(1.) This is a defendant's appeal (sic) out of a suit brought by four plaintiffs for a declaration that the plaintiffs have a right of easement for using the lane indicated by letters Q. A. B. C. D., in the plaint map and that certain constructions made by the defendant indicated by the letters A., B., C. and D., may be demolished. The Courts below have decreed the plaintiff's claim by ordering demolition of certain constructions north of it in the Commissioner's map. Out of respect for the very able arguments which have been advanced before me by Mr. Pandey and Mr. Pathak on behalf of their respective clients, I propose to notice specifically almost all the points raised by them and to deliver a fairly detailed judgment.

(2.) The case as set forward in the plaint was that the plaintiffs and their ancestors had been going from their houses to the southern and western portions of their village as well as to their fields and groves by passing through the lane indicated in the sketch map and that loaded bullocks, horses and elephants had also been coming to and going from the houses of the plaintiffs through this very passage. They further go on to state that the plaintiffs and their predecessors had been using as of right the aforesaid passage for several years and had been using it without any interruption as a passage for vehicles, bullocks, etc., and therefore the plaintiffs have a right of easement in respect of the aforesaid passage for every kind of use and with the exception of this there is no other passage for the use of these plaintiffs in this direction. The words used in the vernacular are "galli," "rasta" and "rah" and there is also the expression "ashaish" used in the plaint. It is argued by Mr. Pandey that the case set forward in the plaint is a case of the acquisition of a right of easement under Section 15 of the Act. It is however argued by Mr. Pathak on behalf of the plaintiffs that they did not plead Section 15 either in terms or by implication. They pleaded a right of way based on custom and immemorial user and also on implied grant. The Courts below have not regarded this right as a right of easement under Section 15 but have uniformly spoken of it either as a village path-way or as a right of easement based on immemorial user. The lower appellate Court has also relied on cases which are applicable to the case of a grant or agreement. Nowhere in the judgments of the Courts below is there any mention of the conditions which are laid down under Section 15, Easements Act, and I am of the opinion that Section 15 was not pleaded and is not applicable to the facts of the present case.

(3.) We have then got to see what findings of fact have been arrived at by the Courts below. It has been held that the brick dalan in suit made by the defendant is a new construction and has not been made on any old foundation. It has also been found that the land in suit is rasta land and that the plaintiffs used to pass over it and used it as a way. The lower appellate Court says that the evidence adduced by the plaintiffs clearly establishes that the lane in suit was used by them as a way for going to and from their houses and they have acquired a prescriptive right of easement to the use over such lane and the plaintiffs can claim a right of easement of way based on immemorial user and that they have established such right by the evidence on the record. There cannot be the slightest doubt that both the Courts below have regarded the evidence produced by the plaintiffs as more reliable than the evidence produced by the defendant. The Court of first instance distinctly says that the plaintiff's evidence is far more reliable than the defendants.