The judgment emphasizes the importance of considering evidence, such as the Commissioner report, in determining easementary rights and the existence of a narrow lane.

1. - This appeal has been preferred by the appellant Gopal Swami-defendant against the judgement of the Additional District Judge, Srimadhopur dated 1.4.2013 whereby his appeal against the judgement of Additional Civil Judge (SD), Srimadhopur was dismissed. The learned Civil Judge, Srimadhopur decreed the suit filed by the plaintiff-respondent. The plaintiff-respondents Radhey Shyam Mathur and Anil Kumar Mathur filed a suit for perpetual injunction against the defendant-appellants contending therein that their pucca haveli no.14 is situated at Ajitgarh township for last 50 years since the times of their ancestors, which opens on the public way. There is a narrow lane (gali) between the two havelis, leading to the main road towards the east. The plaintiffs have been always using that narrow lane/gali for access to their nohra. Besides that, the ventilators and nallas of plaintiffs and defendants also have their gates opening in that gali. The defendants are trying to encroach upon the land of gali thereby depriving the plaintiffs of their easementary right, therefore, prayer was made for perpetual injunction.

2. The defendants in written statement, however, disputed the existence of nohra of the plaintiffs behind their haveli and also the existence of the narrow lane (gali). The defendants pleaded that their haveli was existing since the time of their ancestors. The defendants are using the disputed land for keeping their cattle. The defendants are also having access to their residential house through the doors opening on the southern side. Its eastern wall is made of limestone and western wall, which is towards the main road, was in dilapidated condition. The defendants had removed that wall and were constituting a cemented wall of bricks to prevent the animals and dogs from entering their house before filing the suit. Earlier there was a Chappar over the land in dispute and the defendants had put a tin shed for their cattles and storage of fodder. The existence of gali and nalla was denied and thereby the easementary rights were also refused.

3. The learned trial court while deciding the issue no.1 upheld the contention of the plaintiffs that narrow lane exist between the two havelis and that plaintiffs had the opening of their nallas, windows, ventilators and the gate of their house. The trial court in recording that finding not only considered the statements of PW-1 Anil Kumar Mathur plaintiff no.2 and PW-2 Radhey Shyam Mathur-plaintiff no.1, but also the statement of DW-1 Gopal Swami-defendant no.2 and DW-2 Murlidhar Parikshit. DW-1 Gopal Swami in his statement admitted that the two havelis are not adjoining and there is no common wall between the two havelis. He sought to suggest that the gali was, in fact, situated behind the haveli of the plaintiffs and it was in this gali that plaintiffs have opening of windows, ventilators, gates etc., but denied the suggestion that the waste/running water of the nallas falls into this gali. He admitted that the plaintiffs used this gali for access to their (plaintiffs) nohra. On the southern side of their house, there is 10-11 feet long and 4 feet wide gali. This gali is meant for reasonable use of plaintiffs. DW-2 Murlidhar Parikshit has admitted the existence of nohra of plaintiffs behind their haveli and has stated that a kachcha house was constructed on the southern side of the haveli since the times of their ancestors and its door opens on the main way. Gopal etc. used to keep their cattles in this kachcha house and also keep fodder. This witness denied existence of gali between the two havelis and therefore there is no right of easementary. The learned trial court appointed a Commissioner. The Commissioner report Ex.1 is accompanied by Ex.A1, the site plan is on record. The trial court also took note of the admission of DW-1 Gopal Swami that there is a gali in between the two havelis and that there is opening of the ventilators, windows, nallas and gates in that gali, th