The existence of a common way and its use by parties can be established through evidence such as compromise deed, reports, and usage over a period of time

JUDGMENT

Sudesh Bansal, J. - ppellant-defendants (hereafter referred to as 'defendants') have filed this second appeal under Section 100 of C.P.C., assailing the judgment and decree dated 21.01.2019 passed in civil first appeal No. 14/2014 (10/2014) NCV No. 228/2014 by Additional District Judge, No. 2, Jaipur, District Jaipur whereby and whereunder dismissing the appeal affirming the judgment and decree dated 26.02.2014 passed in civil suit No. 06/2009 (146/07) by Additional Civil Judge (Jr. D.) No. 1, Jaipur, District Jaipur whereby and whereunder respondent-plaintiffs' suit for permanent injunction in respect of a right of way through common way of 12 feet has been decreed in following terms:-

2. Heard learned counsel for appellants and perused impugned judgments and record.

3. It is not in dispute that partition, in respect of the joint agricultural lands, has already been taken place between parties and the dispute is only in respect of a common way of 12 feet wide, alleged to be situated in between the agricultural lands, came in the respective shares of both parties in the partition. Plaintiffs claimed that the way in question was left for common use wherein 6 feet-6 feet land of both parties are included and this way is available at site, which has been used by both parties more than 50 years. Plaintiffs claimed that the way in question is only available way to reach at common well and to the plaintiffs' home situated in their agricultural land. Further it was pleaded by plaintiffs that an easementary right to use this common way has already been created to them but defendants intend to obstruct the way of plaintiffs by raising some construction in the way, therefore the present suit was instituted.

4. Defendants in their written statement categorically denied that the disputed way leads to the common 'well' and to plaintiffs' house and declining even the existence of way of 12 feet at site.

5. The trial court, after framing issues and recording of evidence of both parties, has recorded a fact finding that though the way in question is not recorded in the revenue record, however from the material available on record, more particularly Exhibit-17, which is a compromise deed dated 01.11.1990 duly signed by both parties, the way of 12 feet is situated at site, which was left for common use by both parties. The existence of way is also proved by the report of Court Commissioner 30.05.2008 (Ex. 13) as well as by the report of Tehsildar dated 04.07.2008(Ex. 14). The trial court recorded a fact finding that it is proved by the evidence that through this way in question, tractor trolley, bullock cart etc. have movement, therefore, the width of way as 12 feet cannot be disputed. The trial court also recorded a fact finding that defendant could not show any other alternative way, except the way in question to reach at common 'well' and to plaintiffs' guwadi. Trial court found that this way is common way, which is available for both parties and on the basis of such factual matrix, appellant-defendants were restrained not to obstruct in the common way nor to squeeze the same and to keep it open for movement by the plaintiffs also.

6. Defendants assailed the judgment and decree dated 26.02.2014 by way of filing first appeal. The First Appellate Court has re-considered the entire pleadings and evidence of both parties. The First Appellate Court after re-appreciation of evidence has observed that the existence of 12 feet wide way at site is well proved.

7. It has been observed that where plaintiffs have adduced evidence that this is the only way available to reach at the common 'well' and to the plaintiffs' house. In counter, defendants could not adduce any evidence to show that any alternative way is available for plaintiffs. Perusal of the judgment of First Appellate Court goes to show that the First Appellate Court has concurred with fact findings of trial court after re-appreciation of the evidence of both parties and then the judgment a