( 1 ) INSTANT appeal filed under Section 100 of the Code of Civil Procedure (the Code for short) is directed against the judgment and decree dated 23. 9. 2004 rendered in Regular Civil Appeal No. 115 of 1997 by the learned Joint District Judge and 2nd Fast Track Court, Navsari by which the appeal filed by the respondent Nos. 1 and 2 herein came to be allowed and thereby the judgment and decree dated 20. 10. 1997 rendered in Regular Civil Suit No. 247 of 1991 by the learned 2nd Joint Civil Judge (J. D. ). , Navsari dismissing the suit filed by respondent Nos. 1 and 2 herein is set aside and thereby the suit filed by them is allowed by holding that the respondents have a right of easement by necessity.

( 2 ) PRESENT appellants were defendant Nos. 1 and 2 whereas present respondent Nos. 1 and 2 were plaintiffs and respondent No. 3 herein was defendant No. 3 in the suit. Therefore, the parties are hereinafter referred to as the plaintiffs and the defendants for the sake of convenience.

( 3 ) CASE of the plaintiffs in brief as set out in the plaint is as under:3. 1 naranbhai Bhulabhai Patel, an agriculturist, was a resident of village Nagdhara. Late Naranbhai had three sons named (i) Chibabhai, (ii) Odhavbhai and (iii) Vallabhbhai. Chibabhai passed away as a bachelor. Nathubhai, son of Odhavbhai Naranbhai is alive. The plaintiffs are sons of Vallabhbhai Naranbhai. Defendant Nos. 1 and 2 are real brothers and defendant No. 1 is settled in England whereas defendant No. 2 is residing at village Nagdhara. Defendant No. 3 is the heir of late Naranbhai Mithalbhai. The land bearing Block No. 276 at village Nagdhara is running in the name of Dudhiben, wife of Naranbhai Mithalbhai and mother of defendant No. 3. Block No. 276 was sold to defendant No. 1 and land bearing Block No. 276 is being administered and managed by defendant Nos. 1 and 2. 3. 2. AS soon as defendant Nos. 1 and 2 bought the land from Nathubhai, son of Odhavbhai Naranbhai Patel as described in para No. 3 of the plaint, the defendants started restraining the plaintiffs from using the right of way for the purpose of ingress and egress. On account of this, the plaintiffs found it very difficult to enter into their fields because originally the passage i. e. , the road was passing through eastern side of land bearing Block No. 275, whose possession is with defendants. As this was the only way to enter into fields of the plaintiffs through the land of the defendants which the defendants bought over from Nathubhai, the plaintiffs requested the defendants to permit them to use the way which was being used since the time of late Naranbhai Bhulabhai Patel but the defendants did not accede to the request of the plaintiffs and were not ready and willing to recognize the right of the plaintiffs to pass through the road in question for the purpose of entering into their own fields. In para 7 of the plaint Ex. 1, the plaintiffs have described the agricultural lands which have the nexus and bearing with the subject matter of the suit. The plaintiffs have based their claim of easementary right of way under Section 13 of the Easement Act, 1882 (the Act for short) i. e. , by way of necessity and also under Section 15 of the Act i. e. , by way of immemorial user and prescription. According to the plaintiff, the defendants were trying to obstruct user of the said way and therefore the suit was filed for the relief of a decree that the plaintiffs can enter into their land as described in para 2 of the plaint from the land described in paras 2 and 3 of the plaint and also the plaintiffs can take their labourers, persons, cultivating apparatus like bullock carts, cattle, tractor, trailer, plough, cultivator, etc. , and to continue their use of the land described in para 7 of the plaint as per the provisions of easement right, which they are in the use from the time of their forefathers and from many years and also prayed to restrain the defendants from preventing them from usin