- (1.) A. P. Singh, J. In the present appeal, judgment and decree passed by the lower appellate Court dismissing Suit No. 344 of 1971 filed by the appellant, is under chal lenge on the ground that the lower appel late Court apart from misreading the statement of P. W. 1 and P. W. 2 which they made to prove the plaint case has also wrongly applied the bar of res judicata against them on the basis of the judgment and decree passed earlier in Original Suit No. 132 of 1962.
(2.) IN brief the case of the plaintiff-ap pellant was that the land in suit was being used by the entire residents of the locality (Mohalla Domanpura, in Maunath Bhan-jan City) as Rasta connecting the Govern ment road but the defendant tried to obstruct the Rasta by putting construction over it. He, therefore, sought injunction so as to restrain the defendants from making the construction and obstructing Rasta from the land in dispute. The case of the defendant-respondents on the other hand was that the land in suit was Chowk-Tkziya which was never used as Rasta. The Rasta according to the defendant lay towards east of the disputed land. The plaintiff-appellants got no right to file the suit for seeking injunction. It was further pleaded that one Abdul Karim was the real person who has filed the suit by procuring the signatures of the plaintiffs. The said Abdul Karim has first filed Suit No. 1311 of 1957 for the same earlier but despite fighting up this Court (High Court) he failed whereafter he got another suit filed through his mother Jasima Bibi being Suit No. 132 of 1962 but he again lost up to this Court (High Court ). Before the trial Court the parties led evidence P. W. 1, Abdu! Majid was examined by the plaintiffs who stated that since the time of his childhood the land in suit was being used as Rasta which connected the Government road with the village and people of the village too used it for going to the Government road. He also denied the suggestion that the Rasta did not exist there. Mohd. Ilyas, P. W. 2 (Plaintiff No. 2) also got himself examined. He also proved the plaint case asserting, inter alia, that the land in suit was being used as Rasta since the time he attained the age of discretion and the Rasta was being used by him as well as by all the residents of the locality for going to the Government road and the said right of Rasta from the land in suit was never obstructed by the defendants. The Rasta was being used without the per mission of anyone, there was no other Rasta for going to the Government road from the village. From the aforesaid evidence and also from other supporting documentary evidence trial Court recorded a finding that the land in suit was being used as public Rasta for connecting the village, where the parties resided, with the Government road and the said Rasta lay towards west of the Chowk-Taziya and the said Rasta existed for a long time. With these findings the suit was decreed. Right by way of easement which too was pleaded in the plaint was found proved and the suit was accordingly decreed. Aggrieved by it the defendant-respondents filed appeal under Section 96 of Code of Civil Procedure. The said ap peal was decided by the Civil Judge-II, Azamgarh. The Civil Judge, however, al lowed the appeal by holding that the suit filed by the plaintiffs was barred by res judicata and further that the plaintiffs have not been able to prove from evidence the existence of the Rasta over the land in dispute.
(3.) WHILE coming to the aforesaid con clusions the lower-appellate Court ob served that P. Ws. 1 and 2 did not assert, in their examination-in-chief, that the said Rasta passed from the land in suit. The observations made in this respect by the lower appellate Court are as follows : "in the first place P. W 1 has not stated in his examination-in- chief about the plaintiffs right of way over the land in suit. " "in the first place P. W. 2 (wrongly written as P. W. 1) has not stated the period of user as required by Section 15 of Easement Act. " Both the aforesaid observations made by the lower appellate Court on being compared with the statement in chief of P. W. 1 and 2 is found incorrect. In this respect of the statement-in-chief made by P. W. 1 and 2 are as follows :;