- (1.) S K. Phaujdar, J The present second appeal was admitted on the follow ing substantial questions of law: (1) whether the right of easement can be claimed on a public path way; (2) whether the right of path way can exist on a land which has been declared to be a bhumidhari land of the appellant; and (3) whether the right of easement can be claimed on a bhumidhari land.
(2.) A suit was filed before the Munsif, Bijnor, by the present respondent which was registered as Original Suit No. 237 of 1972. The present appellants were the defendants therein. The suit related to a path- way lying towards the west of the 'haveli' belonging to the plaintiff. The pathy-way stretched from north to south and was a public way. The plaintiff and his predecessor have been in use of that path-way for 100 years and the pathy-way was capable of use by foot and by bullock-cart. The plaintiff claimed to have acquired in easementary right thereon. There was no other way for such user by the plaintiff for egress and ingress from and to his Haveli and Ahata. It was alleged that the defendants intended to block the path by raising some constructions although they had no right thereon. The defendants had also started keeping their manure pits in the path-ways to the hindrance of the plaintiff in its user. The plaintiff prayed for a per manent injunction against the defendants so that no disturbance or hindrance to the use of the path-way be created by them. The defendants contested the suit on the ground that the plaintiffs family owned a residential building in the southern por tion of the abadi in question. In the plaint, the southern boundary of the Haveli of the plaintiff was indicated as Ahata of Phool Singh. The Ahata of the plaintiff and Ahata of Phool Singh was one and the same. Mohan Singh was the grand- ancestor of the plaintiffs' family. His sons had a grove on plot No. 1384 prior to 1934. Mokha, a son of this Mohan Singh, had raised in Ahata in the south-western portion of the abovesaid grove in 1935 and had opened a 10 ft. wide door in the western wall of the Ahata. In 1937, the predecessors-in-interest of the defendants had filed a suit against Mokha which ended in a compromise and Mokha and others were permitted to keep the aforesaid door opened for their egress and ingress from and to their Ahata and in lieu of this concession, they made some payment to the two ancestors-in-interest of the defendants. That door was still in existence, according to the defendants. To the west of the door there was still a 10 ft. wide land to be used as an approach road for reaching the public path-way in plot No. 1201, now num bered as plot No. 1032 in consolidation proceedings. This 10 ft. wide land was in the use of Mokha and his successors as their path. In 1972, one Bhim Singh, a grand-uncle of the plaintiff became the Pradhan of the village. Taking advantage of the tem porary absence of the defendants from the village, the plaintiff and other members of his family, with the connivance of the Prad han, Bhim Singh, demolished a portion of the western wall of their Ahata in its north ern portion and further demolished a cattle trough of the defendants which was in exist ence since long. These persons further raised a wall towards the east of their Kotha and the plaintiff and others started asserting a right to use the northern portion of their western wall of the ahata so demolished as a door. The defendants asserted that the plaintiff and others had no right to use any door other than the one which was in exist ence from before and which, in terms of the compromise in the suit of 1937, they were permitted to use. The plaintiff and others had also opened sky light in the western wall of their kotha and had opened two parnalas on their kotha towards their west which was originally lying towards north. The defen dants submitted that the land lying towards the west of the ahata cf the plaintiff was plot No. 1200/2, now designated as plot No. 944 in the consolidation proceedings, and this land was always owned and possessed by the defendants and their ancestors. They had become bhumidhars for this land prior to the consolidation operations. They have been payingland revenue to the State as bhumidhar. The defendants had been using this land for crushing sugarcane. They have their manure pits etc. on the same and have been using the land for keeping fuel, puwal, tractor and the likes. They are also keeping their cattle on this land. The defendants further claimed that the land in dispute was the land appurtenant to the house of the defendants prior to the coming into force of the U. P. Z. A. & L. R. Act and by operation of law the land vested in the defendants. In the consolidation proceeding it was found to be a bhumidhari land belonging to defendant No. 3 and Smt. Shanti Devi. The consolida tion proceedings have ended and have be come final and the defendants became owners of the land in dispute. It was asserted that the land in suit was never a public path way. The public path had all along been towards the west of the defendants' con structions on plot No. 1032. The plaintiff had no easementary right upon the land in dispute. Plot No. 1383 was also owned and possessed by the defendants and their ances tors. The suit was dismissed by the court of first instance on a finding that the suit plot was not a pathway as claimed by the plaintiff and the plaintiff had no right of user of the same as a path-way. The trial court further found that the suit plot belonged to the defendant and was in their possession and was appurtenant to their house and the suit was accordingly not maintainable. The trial court was of the view that the plaintiff never got the suit land surveyed to fix its identity. Accordingly, the trial court accepted the consolidation entries.
(3.) THE aggrieved plaintiff filed the first appeal which was registered as Civil Appeal No. 382 of 1976 and the same was heard and decided by the 1st Addl. District Judge, Bijnor on 12-1-1977. THE first appellate court allowed the appeal, set aside the judgment and decree and decreed the suit restraining the defendants from raising any construc tion on the land in dispute and from causing any obstruction on the public path accept ing the plaintiffs right of way thereon. THE defendants were also directed to remove the manure pits and other encroachment on the public path. The plaintiff described the Haveli of the plaintiff by its boundary only as follows: East - plot of Rampal West-Rasta South - Ahata of Phool Singh North - Land of Ram Pal The disputed rasta was described again by its boundary: East-Abadi West-Abadi North - Rasta, which took a turn and proceeded to east South - Rasta which took a turn towards abadi.;