Sibghat Ullah Khan, J. - (1.) HEARD learned counsel for the appellant at the admission stage.
(2.) THIS is plaintiff's second appeal arising out of O.S. No.586 of 1992, which was dismissed on 16.07.2004 by Civil Judge, Junior Division, Shahjahanpur. Against the said decree plaintiff appellant filed Civil Appeal No.40 of 2004, which was dismissed on 25.08.2010 by A.D.J. Court No.3, Shahjahanpur, hence this second appeal. The suit was filed by Ram Vilas and Devendra Kumar. Ram Vilas died during pendency of the suit. Devendra Kumar son of Ram Gopal claimed that he was the only legal representative of Ram Vilas, plaintiff No.1. Appeal was filed by Devendra Kumar alone. The relief claimed in the suit was of easementary right over a piece of land admeasuring 25 square meter which was described as sahan chabootara denoted by letters ka, kha, ga and gha in the plaint map. Houses of deceased plaintiff No.1 Ram Vilas and of defendants Om Prakash and Jagdish Prasad (defendants No.4 & 5) proforma defendants were shown towards west of the land in dispute with a passage intervening. Similarly, house of Devendra Kumar, plaintiff No.2 was shown towards south of the land in dispute with passage intervening. Original plaintiff No.1, Ram Vilas and defendants Jagdish and Om Prakash were real brothers. Contesting defendants No.1 to 3 were Krishna Kumar and his two sons. It was claimed in the plaint that plaintiff No.1 Ram Vilas, defendants No.4 & 5 each had one third share in the property in dispute. It was further alleged that plaintiff No.1, proforma respondents and Sita Ram grand -father of Devendra Kumar plaintiff No.2 were using the property in dispute for about 45 years for family functions. It was further pleaded that in between plaintiff No.1 and proforma defendants on the one hand and Ram Gopal father of plaintiff No.2, Devendra Kumar, a dispute arose in respect of land in dispute, which was resolved through written agreement dated 08.04.1975 in which easementary right of plaintiff No.1 and proforma respondents was accepted. It was further pleaded that over the land in dispute a puccawell existed from which all the people of the locality drew water and took bath and used the same for marriage and other functions and as people of the locality used the water of the said well hence they also acquired easementary right. It was further pleaded that original plaintiff No.1, Ram Vilas donated his one third share on 13.05.1991, to Bhagwan(God) of which plaintiff No.2 became mutawalliafter death of plaintiff No.1.
(3.) THE courts below held that plaintiffs completely failed to prove easementary right. It was further held that on the one hand ownership right was being claimed and on the other hand easementary right was being claimed which were not compatible as easementary right can accrue only on the property of the others. It was further held that easementary right could not be gifted by constituting a trust.;