The establishment of an easementary right based on continuous use and necessity, and the impact of the Land Revenue Act on such rights.

JUDGMENT

1. Appellants-defendants have preferred this second appeal, invoking the jurisdiction of the High Court under Section 100 CPC assailing the judgment and decree dated 19.03.2014 passed in Civil Regular Appeal No.(1/2004) (9/2004) 95/2005 by the Court of Additional District Judge No.2, Sikar affirming the judgment and decree dated 11.12.2003 passed in Civil Suit No.17/2003(53/1997) by the Court of Additional Civil Judge (Senior Division), Sikar District, Sikar whereby and whereunder the civil suit for declaration and permanent injunction, filed by respondents-plaintiffs, has been decreed in following manner:-

2. On perusal of record, it transpires that respondent-plaintiffs claimed a way from village Rampura to Bhagsar Talai, Vilage Puran Bari to have access to their agricultural land and since the aforesaid way, passes through the agricultural lands of appellant- defendants, in which defendants raised some obstruction, hence the present civil suit was filed.

3. It was claimed by plaintiffs that the way in question is being used by them since time of their predecessors and the same has been indicated in the revenue map with dotted lines. Plaintiffs claimed that there is no alternative way to have access to their agricultural land, hence plaintiffs have an easementary right by way of necessity to have their way through the way in question. The width of the way as alleged to be near about 8 hands wide.

In counter to the claim of plaintiffs, defendants submitted written statements denying the way in question and alleged that during course of settlement, the way through dotted lines in the revenue map has wrongly been indicated for which defendants moved an application under Section 136 of the Land Revenue Act for seeking correction in the map before the Sub-Divisional Officer. Defendants also contended that plaintiffs have an alternative way, which was shown by defendants in the site map (Exhibit-A1) from mark "?" to "?'. Defendants contended that in view of having the alternative way, plaintiffs cannot claim a declaration of the right of easement and their civil suit deserves to be dismissed.

4. Having considered rival pleadings of both parties and after framing issues as also recording the evidence of both parties, learned trial court has recorded a finding of fact that plaintiffs have proved that the way in question exists at site and they, since time of their predecessors, are using the way in question for having access to their fields, on foots as well as through vehicles like bullock carts, tractors etc.

5. The oral evidence of plaintiffs and their witnesses finds corroboration with the report of the Court Commissioner [Exhibit- 12(3)], which shows that the way in question is available at site having width of 15 feet wide. It may be noticed that defendants have not raised any objection against the report of the Court Commissioner. Plaintiffs and their witnesses, categorically denied having any alternative way and explained that the alternative way, shown by defendants in map (Exhibit-A1) from mark "?" to "?', does not link the agricultural land of plaintiffs.

6. The trial court also observed that in the revenue map also the way in question has been shown. Further, by the evidence of defendants and their witnesses, it transpires on record that defendants and their witnesses have also admitted the existence of the way in question at site like a trail/beaten path Even the witness of defendants, DW.4, admits that the width of this trail is 6 to 7 feet wide.

7. The trial court further observed that defendants in their written statements categorically denied the existence of any way, however, in evidence they have admitted the existence of way in form of trail ,hence defendants have not disclosed the correct facts in their pleadings. The trial court observed that as far as the availability of alternative way is concerned as shown by defendants, the same does not link plaintiffs' agricultural land to have access in their agric