The plaintiff must prove the acquisition of an easementary right over the disputed passage, and findings of fact are binding on the appellate court unless they are found to be perverse or against the evidence.

JUDGMENT

Tarlok Singh Chauhan, J. - The appellant is the plaintiff, who lost before both the learned Courts below, has filed the instant appeal on the ground that the findings recorded by the learned Courts below are totally perverse and, therefore deserves to be set-aside.

The parties shall be referred to as the ''plaintiff'' and ''defendants''.

2. Brief facts giving rise to the present appeal are that the plaintiff filed a suit to the effect that he alongwith his family members has got a right of passage to use the ''maind'' of defendant No. 1, being his elder brother and having inherited the land from their father late Sh. Fquir Chand, which was subsequently partitioned. Such land was comprised in Khasra No. 2469/1518. Apart from seeking declaration, relief of permanent prohibitory injunction was also sought for restraining the defendants from blocking the said passage of using their ''maind'' for any other purpose.

3. The suit was contested by the defendants by filing written statement wherein preliminary objections regarding maintainability, cause of action, locus-standi, non-rejoinder of necessary parties and suppression of true and material facts were raised. On merits, it was pleaded that the parties were residing separately since long in their separate houses. However, it was denied that the suit land had been partitioned. It was rather alleged that the father of the parties had executed a sale deed by way of Tatima in favour of the plaintiff and defendant No. 1 and that the suit land had been given to the plaintiff in the manner so that the Government land and open khad situated alongside the suit land, which was a motorable road could be used by the plaintiff to approach the suit land and his fields. It was denied that the plaintiff was using any maind of the defendants to approach his agricultural fields. It was alleged that it was since the time of their father that the Government land being used as a passage by both the parties and no such passage otherwise existed on the land of the defendants.

4. From the pleadings of the parties, the learned trial Court on 02. 06. 2005 framed the following issues:

1. Whether the plaintiff is entitled for path through "Maind" boundaries of fields of defendants for ingress and egress for reaping the benefit of his fields on the basis of "Wajib-Ul-Araz" as alleged? OPP

2. Whether the plaintiff is entitled for relief of mandatory injunction in alternative as alleged? OPP

3. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD

4. Whether the plaintiff has no cause of action to file the present suit? OPD

5. Whether suit is bad for non-joinder of necessary parties as alleged? OPD

6. Relief.

5. Xxx XXX XXX

6. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit of the plaintiff and the appeal filed against said judgment and decree, too was dismissed by the learned first Appellate Court vide judgment and decree dated 21. 2. 2017. It is against both these judgments and decrees passed by the learned Courts below that the plaintiff has filed the instant appeal.

7. Xxx XXX XXX

8. It is vehemently argued by Mr. Arush Matlotia, learned counsel for the appellant that the findings recorded by the learned Courts below are totally perverse inasmuch as the learned Courts below have failed to take into consideration the oral as well as documentary evidence more especially Ext. P-6 and Mark ''Y'' and thereby reached a wrong conclusion.

I have heard learned counsel for the parties and have gone through the grounds of the appeal and material placed on record.

9. What is ''perverse'' was considered by the Hon''ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another , 2009 10 SCC 206, wherein it was held as under:-

"26. In M. S. Narayanagouda v. Girijamma & Another , 1977 AIR(Kar) 58, the Court observed that any order made in conscious violation of pleadin