The main legal point established in the judgment is the requirement for sufficient and positive evidence to prove the continuous exercise of an easementary right of passage over a piece of land for the last 20 years, as well as the consideration of alternative passage and changes to the disputed passage.

S.N.Pathak, J.

1. The revisionist, Sriram Nonia, has come up before this Court assailing the order dated 27th February, 2001, passed by the 3rd Addl. Session Judge, Bhojpur, Ara in Cr. Revn. No. 260 of 2000, whereby the Sessions Court allowed the revision before it filed by the opposite party of the revision before this Court and set aside order passed by the executive Magistrate in a proceeding under Sec. 147 of the Code of Criminal Procedure in Case No. 1 of 1995.

2. Facts relevant for this revision are, in short, that the revisionist. Sriram Nonia, had preferred the aforesaid Misc. Case No. 1 of 1995 before the Executive Magistrate u/s. 147 Cr. PC claiming easementary right of passage over a piece of land 31-32 feet in length and 5 feet in width between the houses of one Kesho Prasad Upadhaya over Plot No. 59 and Hridayanand and others (O.P. of this revision) over Plot No. 61. Further it was the case of Sriram Nonia that he was living on Plot Nos. 55 & 56 under Khata No. 88 for the last fifty years and so he obtained settlement from the State of Bihar in the year 1983. However, in the year 1995, opposite party Hridayanand Mishra and his family members, who were owners of Plot No. 61. started raising a wall on their southern extremity which amounted to blocking of passage of the revisionist from his house. The revisionist was using the aforesaid passage to go upto the road on the southern extremity of the houses of Kesho Upadhyay and Hridayanand Mishra from his own house. Both, Kesho Upadhyay and Hridayanand Mishra each had left 2 1/2 feet wide land carved out from their own land for the passage of the revisionist for the last 50 years. However, on account of the raising of wall on Gth March, 1995, the informant was obstructed in his passage and so he filed a petition before the Executive Magistrate who, after taking evidence on behalf of both the parties, decided the proceeding in favour of Sriram Nonia and directed the demolition of the alleged wall raised by Hridayanand Mishra and his family members.

3. However, the learned Sessions Judge in the revision filed by the 2nd Party of the proceeding, set aside the order of the Executive Magistrate, which necessitated the filing of the revision before this Court.

4. But on perusal of the judgment of the Sessions Court, it transpires that the Sessions, Judge considered the evidence of PW1, PW 2 and PW 3 on behalf of the revisionist-first party and held that the revisionist had failed to prove continuous exercise of his right of passage over the concerned 5 feet wide strip of land for the last 20 years and, hence, he allowed the revision before himself and set aside the order of the Executive Magistrate. The learned Sessions Judge further opined that since the first party revisionist (Sriram Nonia) had obtained the settlement in the year 1982-83 and so in the year 1995 he had not completed 20 years in using the passage.

5. The order of the Sessions Judge has been challenged, firstly, on the ground that the Sessions Judge committed error of record while stating the evidence of PWs and he also failed to notice the fact that the Karmchari, Circle Inspector and 19 villagers had supported the claim of Sriram Nonia regarding the use of the passage in question.

6. So far the assertion that the learned Sessions Judge committed error of record, I find that this assertion of the revisionists lawyer is not borne out by the evidence on the record. Any body who sets up right of a user over any piece of land, belonging to some others, must establish this right as originating from and continuing for, an unobstructed period of 20 years. The revisionist first Party (Sriram Nonia) examined three witnesses, including himself and perhaps, brought on the record a letter written by the Circle Officer, Shahpur (Letter No. 302 dated 6th November, 1995) enclosing with it the report of the Karmchari and the Circle Inspector along with petition of 19 villagers. Out of the witnesses examined, AW 1 w