The existence of right of easement was established based on credible evidence, and the settlement ROR was not considered conclusive.

JUDGMENT :

A.K. RATH, J.

1. Plaintiff is the appellant in a suit for declaration of easementary right, permanent and mandatory injunction.

2. The parties have a common ancestor. Though the family pedigree assumes less importance in the frame work of the suit, still it need be mentioned for better appreciation of facts. The following genealogy would show the relationship of the parties.

				Baidyanath Behera
Shyam							Baidhar
Chema				Daitari			Khetramohan
Banshidhar (D-1)		Surendra (Plaintiff)		Madhusudan (D-3)	Balakrushna		Jagamohan
					Kamalabala (D-2)

The case of the plaintiff was that the suit land appertaining C.S. Khata No.75, plot no.169 corresponds to M.S. khata no.17, plot no.280. Plot no.168 situated to its eastern side was recorded in the name of his grandfather, Baidhar Behera. Out of the said plot, the northern portion was in possession of Balakrushna and Jagmohan, who belong to the branch of Khetramohan. The southern portion of plot no.168 is being possessed by him and his brother Madhusudan. Madhusudan left the village and stayed at village-Malada. Few years back, Balakrushna and Jagmohan sold their share, i.e., the northern portion of C.S. plot no.168 to one Krushna Ch. Panda. Again one year thereafter Balakrushna repurchased the same in the name of his wife Kamalabala, defendant no.2. C.S. plot nos.169 and 169/475 were recorded in the name of the grandfather of defendant no.1. The father of defendant no.1 inherited the same in due course of time. On 2.4.70, the plaintiff, defendant nos.1 and 2 purchased and sold their lands between themselves. Defendant no.2 sold Ac.0.001/2 dec. to the plaintiff from out of her share in plot no.168 and Ac.0.03 dec. from the same plot to the father of defendant no.1, Chema Behera. After purchase, the plaintiff became the owner of Ac.0.04 dec. in the southern side of C.S. plot no.168. The father of defendant no.1 became the owner of northern side of C.S. plot no.168 measuring Ac.0.03 dec. C.S. plot no.169 situated in between the public road and C.S. plot no.168. The house of the plaintiff is situated on the southern side of C.S. plot no.168. In order to go to the public road, he used a passage measuring 10 links x 75 links situated on the southern side of C.S. plot no.169. According to the plaintiff, they are using the said passage to the public road from their grandfather’s period and there is no other alternative road to go to the public road. Defendant no.1, who is the recorded owner of C.S. plot no.169, used it as his backyard and the passage is situated just at the end portion in the southern side of the plot. But on 22.2.88 he constructed a house by encroaching a portion from the aforesaid passage, as a result of which, the width of the passage was reduced to about one cubit. Previously its width was approximately 4 to 5 cubits. Therefore, they were facing much inconvenience to go to the public road. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

3. Defendant no.1 filed written statement denying the assertions made in the plaint. The specific case of the defendant no.1 was that the plaintiff was earlier going to the public road through some other plots situated in the eastern side of C.S. plot no.168 which belonged to him. But now he is going to the public road through a passage situated in the southern side of C.S. plot no.169/475 which has been recorded in the name of Kamalabala, defendant no.2. There is no passage in the southern side of his plot no.169 and the plaintiff has falsely claimed a portion from his land to use the same as a road. Since he is using the southern side of plot no.169/475 as a road, there is absolutely no reason for him to claim any portion from plot no.169. In the MSROR, C.S. plot no.169 has been correctly recorded as plot no.280 having area Ac.0.05 dec. He refuted the al