JUDGMENT :

1. Being aggrieved and dissatisfied with the judgment and decree dated 12.08.1988 passed by the learned Second Joint District Judge, Vadodara, in Regular Civil Appeal No.353 of 1984, the original defendant has preferred the present Second Appeal.

2. The appellant is the original-defendant and respondent is the original-plaintiff. For the brevity and convenience, the parties are referred to in this judgment as per the character assigned to them before the trial Court.

3. The plaintiff has filed the suit for permanent injunction for restraining the defendant from obstructing the plaintiff from passing over the land of the defendant. It was alleged by the plaintiff that he is the owner of the property of 370 Sq. ft. on external side of the Survey No.101/2 paiki of Tika No.6/1 situated in Kansara Pol of Chokhandi area of Vadodara City. There is a Chowk on west side of his property and parcel of land admeasuring 11 ft. X 8 ft., North-south and east-west respectively is claimed to have been owned by plaintiff. It is the case of the plaintiff that since last 35 years, he was the tenant of the said property at monthly rent of Rs.7/- and ultimately he has purchased from its original owner Mr. Krishnakant on 18.05.1981 by a registered sale deed. According to the plaintiff, the house of the defendant is situated on the north of his house and on west of house of the defendant, there is an open land admeasuring 10 ft. X 10 ft. It is contended by the plaintiff that from his house, he has to pass through this open land of the defendant, to go to “Ghanchi Gor Khadki” which ultimately leads to public road and he is using this road since last 25 years continuously and without any obstruction. According to the plaintiff, there is no other road for ingress and outgress from his house to public road. It is the case of the plaintiff that he is using this suit way since he came to reside in the suit house as tenant. According to him, his predecessor also used to have access by the suit way only, but defendant is obstructing him in the use of suit way and hence he had filed R.C.S. No.1120/1976 against the defendant. At that point of time plaintiff was a tenant. The interim application filed in that suit came to be dismissed by the Trial Court as well as Appellate Court on the ground that there cannot be Easementary Right for a tenant.

3.1 Thereafter, the plaintiff had filed Suit No.229/1979 in the Court of Small Causes, where his application for interim injunction was rejected on the ground that the Small Causes Court cannot decide the question of Easementary Right. It is a further case of the plaintiff that in view of the fact that he has purchased a suit house by registered sale deed from Mr. Krishnakant, Small Causes Court shall not have any jurisdiction vested in it and therefore, he has filed the present suit and withdrawn the earlier suit filed before the Small Causes Court.

3.2 According to the plaintiff, he has acquired the right of way over the open land of the defendant and he is using the suit way since last 25 years continuously, without any obstruction or interruption. According to him, as there is no any other alternative way available to him except the suit way for ingress and outgress, if the said way is closed, he would not be in a position to use his house. According to him, as the defendant is trying to obstruct him, he has filed the present suit claiming the right of easement by way of prescription and/or by way of necessity and sought for permanent injunction against the defendant.

4. It appears from the record that the defendant resisted the suit by filing written statement at Exh.12 in Trial Court. It was contended that the suit is barred by limitation. It is also contended that in a suit R.C.S. No.1719/1968, the present plaintiff was restrained from disturbing the peaceful enjoyment of suit property of bathroom privacy and kachha room of the defendant. The said decree was confirmed upto second appeal. It is contended that