The main legal point established in the judgment is the importance of properly considering the oral evidence and the law applicable to the case in reaching a decision. The judgment also emphasized the legal principle that in cases of easement of necessity, the omission of mentioning a particular easement in the partition deed is hardly relevant, as the law presumes the grant of easement of necessity in cases of joint property partition.

Dinesh Maheshwari, J.-The plaintiff No.1 Mangu Ram has preferred this second appeal against the Judgment and decree dated 22.08.1983 passed by the Civil Judge, Merta in Civil Appeal No. 36 of 1983 whereby the learned Civil Judge dismissed the appeal and affirmed the Judgment and decree dated 29.09.1976 passed by the Munsif , Nawa in Civil Suit No. 7/1973 which was filed by the plaintiffs for declaration and for granting of mandatory as well as perpetual injunction in relation to a right of way claimed by them for reaching their agricultural land through that of the defendant.

2. Briefly put the facts of the case are that the plaintiffs Mangu Ram (appellant herein) and Banna Ram filed the suit against defendant Shri Kishan with the averments in the plaint that agricultural land comprised in Khasras No. 899/1, 899/2 and 899/3 admeasuring 26 bighas 6 biswas situated at village Nawa was earlier in the joint kahtedari of the father of the plaintiffs and the father of the defendant. On 03.07.1953 a partition was effected and the western portion of the land fell in the share of the plaintiffs with the eastern portion going to the share of the defendant. A plan was annexed to the plaint and it was averred that before the partition, the only way of entering the land was at point R (shown on the northern side of the land). The plaintiffs averred that after the partition, on account of necessity of reaching the portion of the plaintiff , the way on the northern boundary shown at point RS was kept 12 ft. wide, which was regularly used by the plaintiff for carrying their carts, cattle etc. for agricultural purposes. The plaintiffs alleged that with the relation between the parties straining, the defendant attempted obstruction on this way RS and, therefore, they filed an application under Section 251 of the Rajasthan Tenancy Act before the Tehsildar, Nawa who issued an order on 09.06.1972 against the defendant for not obstructing the way. However, when the plaintiffs were carrying on agriculture operation for Rabi crops, then suddenly on 310.1972, plaintiff Banna was got arrested by the defendant and when the plaintiff Mangu was engaged in Pairvy of Banna, defendant destroyed and over-run the way RS and placed obstacles. The plaintiffs later on came to know that the Tehsildar had also vacated the restraint order without hearing the plaintiffs and without making a complete enquiry. According to the plaintiffs, with the obstruction on the way RS, no other way was available for reaching the portion of the plaintiffs and the land was rendered useless. The plaintiffs claimed it to be a matter of easement of necessity and filed the suit seeking declaration in respect of the way at the point RS and also prayed for mandatory injunction for removal of the obstructions at the way and restraining the defendant by perpetual injunction for not obstructing the way in future. The plan filed alongwith plaint is at Page A5/5 of the record of the original suit.

3. The defendant with his written statement filed another plan, which is at Page A13/4 of the record. While admitting the measurements of the land in question and also admitting the fact of partition having been taken place on 03.07.1953, the defendant referred to the plan submitted by him and averred that the two fields were specifically divided by the boundary running in the entire length from North to South from point B to point C, the eastern portion being in the share of defendant while western portion falling in the share of the plaintiffs.

4. It was further averred that on the western side of the plaintiffs land, field of the Government school and another land of Khasra No. 898 referred as “Kothi Karari” were situated. A specific point Z was marked on the western boundary of the land of the plaintiffs opening in the field of the school and it was alleged that this point Z represented the way used by the plaintiffs for reaching their land, that is through the field of Government Sc