Decided on July 19,2013

YASEEN Appellant
JAMSHED ALI Respondents


- (1.) This second appeal, preferred under section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 18.10.2001 passed by Civil Judge, (Senior Division) Roorkee, whereby said court has dismissed the Civil Appeal No. 02 of 1999 and affirmed the judgment and decree dated 18.12.1998, passed by the trial court (Ist Additional Civil Judge Junior Division, Roorkee) in Original Suit No. 167 of 1991. The trial court had decreed the suit for permanent injunction restraining the defendants (appellants) from interfering in peaceful user to Rasta land.
(2.) Heard learned counsel for the parties, and perused the record.
(3.) Brief facts of the case are that Zahura (since died), original plaintiff, filed the Suit No. 167 of 1991 before the trial court with the pleadings that he alongwith the defendant No.1 and 3 was Bhumidhar of the land in suit, and about 22 years before filing to the suit, the property was partition between them. It is further pleaded that land in suit shown in the plaint map of width 10 feet was left for use as pathway by the plaintiff's which is shown as A B C D in the plaint map. Adjoining to said land defendant No.2 Ishaq has constructed his house. It is further pleaded by the plaintiff' that he was using the land as pathway for about 22 years openly without any interference, and as such, he has matured his right of easement. In para 6 and 10 of the plaint it is stated that the plaintiff' has a right of easement of necessity over the land in suit as there is no other way for him to go from his house to CHAKROAD/main village road between the fields. It is alleged by the plaintiff' that after the defendants started interfering in May 1991, the plaintiff' complained to the police whereafter a settlement/compromise was arrived between the parties, and the defendants agreed not to interfere over 10 feet pathway left for the plaintiff'. However, in June 1991, defendants allegedly started collecting bricks for raising construction over the disputed land, as such the present suit was filed for permanent injunction restraining the defendants from raising construction. By amending the plaint it is also prayed that the defendants be directed to remove the wall raised by them over the disputed land.;

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