ARUN BHANSALI, J. - (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 28.07.2012 passed by Additional District Judge, Nimbahera, District ­ Chittorgarh, whereby, the appeal filed by the respondent -plaintiff was partly allowed and judgment and decree dated 22.12.2005 passed by Civil Judge (Junior Division), Nimbahera was set aside.
(2.) THE facts in brief may be noticed thus: the respondent - plaintiff filed a suit seeking declaration and permanent injunction on 06.07.2002 with the averments that land comprised in Aaraji No.327 admeasuring 10 Bigha 19 Biswa situated at Village Tai, Tehsil ­ Nimbahera was plaintiff's ancestral property, which was in plaintiff's and his family's possession for over 50 years and was being cultivated by them; the neighbouring Khasra numbers were 323 and 322. It was claimed that for going on to Aaraji No.327 plaintiff and other surrounding cultivators have got easementary right on the way indicated as A to B on the map annexed to the plaint; the way was very old and was in existence. It was alleged that the defendants were bent upon obstructing the said way and for that purpose on 28.06.2002 the defendants and their family members were obstructing the way by parking a Tractor and collecting agricultural goods and started abusing the plaintiff, regarding which the FIR was lodged and the defendants were bound by the Police; cause of action arose on 28.06.2002; the suit was within limitation and it was prayed that the defendants be restrained from obstructing the field in the annexed map marked as A to B and not to interfere with their easementary right; and if during the pendency of the suit, if by digging, the way is obstructed than by mandatory injunction, the same be got reopened and his easementary rights be declared. A written statement was filed by the defendants on 14.08.2002, denying the averments contained in the plaint; existence of way was denied and it was indicated that alternative way was available and only on account of dispute with the defendants an illegal way has been sought to be created; on the south side of plaintiff's field, land belonging to his father was situated and he was utilizing the way from the fields of his brothers Basantilal, Damarlal etc. It was claimed that the land earlier belonged to plaintiff's father and on account of partition, the same has come in the share of plaintiff and plaintiff was seeking to find alternative way for sake of convenience, no easementary right was available and two alternative ways were available.
(3.) ON the pleading of the parties, the trial court framed eight issues. On behalf of plaintiffs, five witnesses were examined and five documents were exhibited. On behalf of the defendants, four witnesses were examined and five documents were exhibited.;