The main legal point established in the judgment is that the right to easement claimed by the plaintiffs would not stand exhausted by acquisition, and that the passage, being the only access for the appellants to approach the national highway, should be made open for their use.

Mohinder Pal, J.

1. Being aggrieved and dissatisfied with the judgment and decree passed by learned 2nd Joint District Judge, Mehsana in Regular Civil Appeal No. 195 of 1984 whereby learned Judge has set aside the judgment and decree passed by learned Civil Judge, Senior Division, Mehsana in Regular Civil Suit No. 75 of 1978 against defendant No. 3 (Union of India owning Western Railways), present appeal has been preferred.

2. Brief facts of this case are that, two agricultural lands bearing survey Nos. 1702 & 1703 situated in Mehsana were at one time owned by one Shah Navnitlal Antalal along with other lands bearing survey No. 1701 etc. One Nafatlal, in the year 1959, obtained permission for non-agricultural use of survey No. 1702. Thereafter, he divided these lands into 90 plots for construction of houses. He sold these plots to different persons. Original plaintiffs were owners of some of these plots who built houses over their plots and were residing there.

3. It is further case of the plaintiffs that to the west of survey No. 1702, there is a land bearing survey No. 1703 and to the further west there is national highway from Delhi to Ahmedabad. According to the plaintiffs, there was a passage which was being used by them to approach the national highway from survey No. 1702 having boundary with survey No. 1703. It is their allegation that son of defendant No. 1 was prosecuted for theft of goat in which wife of plaintiff No. 4 was the prosecution witness. There was a quarrel between the plaintiffs and the defendants as a result of defendant No. 1 having obstructed the passage over which plaintiffs had a right to approach the national highway. Shri Shah Navnitlal Antalal, original owner, died and, after his death, his wife Kantaben sold the lands bearing survey Nos. 1703 & 1701 and some other lands to the present defendant No. 1.

4. In the meantime, Union of India, who is original defendant No. 3, acquired survey No. 1703 for the purpose of constructing staff quarters of Western Railways. Award in that respect was passed in the year 1970. Defendant No. 1 purchased the remaining land bearing survey No. 1703 from Kantaben by a registered sale deed dated 11.11.1975. A dispute arose between the original plaintiffs and the defendants for use of the passage which linked the national highway with the plots of the plaintiffs. The suit for easement filed by the plaintiffs was decreed, however, in appeal the findings were reversed by holding that the benefit of easement of necessity would get exhausted by acquisition and as such the right to passage by the plaintiffs for joining their plots to the national highway was declined. Aggrieved from this decision, the present appeal has been preferred before this Court.

5. Learned counsel for the appellants has submitted that the findings recorded by the appellate Court are erroneous while holding that easement of necessity would get exhausted by acquisition. According to him, the finding itself is self-contradictory. Once the Courts have come to the conclusion that the passage in question was the only access for the appellants to approach the national highway, by saying that the easement of necessity would get exhausted after acquisition was against the facts and was wrong. In support of this submission, he has referred to the following two decisions:

"(i) H.P. State Electricity Board v. Shiv K. Sharma reported in 2005 (0) GLHEL-SC-10381

(ii) Vijayan v. State of Kerala reported in 2004 (3) KLT 228."

6. On the other hand, learned counsel representing the Railways has argued with vehement that the lands in question, including the passage used by the appellants, have been acquired by the Government for which compensation has been paid by the Railways. It is submitted that once price has been paid by the Railways for acquisition of the lands, the right to easement claimed by the plaintiffs would stand exhausted. Unless the appellants are ready to pay price for the passage alleged to have bee