ORAL JUDGMENT:

1. This is a second appeal preferred by legal representatives of original Plaintiff Alimoddin, being aggrieved by the judgment and decree passed by the learned III Additional District Judge, Nanded, in Regular Civil Appeal No.246 of 1984 on 19.1.1990, thereby setting aside the judgment and decree passed by learned Civil Judge, Junior Division, Degloor, in Regular Civil Suit No.75 of 1980 decided on 12.9.1984.

2. At the time of admission of this second appeal on 2.4.1990, no substantial question of law was framed. The substantial question of law that may be raised is whether the District Court committed an error in allowing the appeal and dismissing the suit holding that no right of easement by prescription is proved by the plaintiffs and my answer to the said question of law is in the negative for the reasons discussed hereinafter.

3. It is the case of the appellants that they are the owners of house No.116 situated at Degloor. Original Plaintiff Alimoddin purchased it for Rs.400/= by sale deed dated 19.2.1952 from Defendant No. 2 and has been in possession of the said property. There is an open space adjoining the property of the appellants, which was sold by original Defendant No. 2 to Defendant No. 1 by a registered sale deed dated 17.11.1979. The Plaintiffs have claimed right of way by prescription through the property which is purchased by Defendant No.1. It is further stated that Respondent No. 1 has obtained permission from Municipal Council for making construction and was about to raise the construction on the property purchased by him and, therefore, suit is filed, praying that the Defendants be perpetually restrained from interfering into the right of way by making any construction or raising structure on the suit property and that the registered sale deed executed by Defendant No. 2 in favour of Defendant No. 1 be treated as ineffective and not binding on the plaintiff.

4. It may be noted that the open space, regarding which the dispute is raised, admeasures 7.62 x 6.10 meters. The Plaintiffs-appellants do not come with a case that the Respondents-defendants should leave a particular lane for approaching the road on northern side of their property but they want that the no part of open space should be used for any construction.

5. The appellants have produced a map/sketch along with list Exhibit 4 in which they clarified the situation of open space in question and the District Court, after referring to the said sketch / map along with the sketch drawn by the court commissioner on spot inspection and also considering the map annexed to the sale deed dated 17.11.1979, held that it is one and the same property which is purchased by Defendant No.1 from Defendant No. 2 in respect of which the right of easement is claimed.

6. After considering the case of the plaintiffs, it is observed that on the eastern side of the property of the plaintiffs, there is a lane upto northern road and the said lane can safely be used as a way for approaching northern road without making use of disputed site. We find discussion to that effect at the end of paragraph 8 of the judgment of the District Court.

7. In paragraph 9 of the judgment, it is stated that the plaintiff in his cross examination admitted that there is a road on the western side of his house No.116 and also admitted that there there is Ashrukhana. The Plaintiff, in his cross examination, pleaded ignorance regrading map that was produced by him along with list Exhibit 4.

8. It is admitted by PW1 Mohammad Shamshuddin, who deposed on behalf of the appellants, that the original plaintiff Alimoddin had constructed one hotel in disputed plot after obtaining permission from the Municipal Council. The hotel is said to be there for 25 years and thereafter the Municipal Authorities dismantled the same. He further admitted that the said space for hotel was earlier given to his father by Municipal Council on rent and his father was paying rent to the Municip