The judgment establishes the importance of proving easementary rights and the consideration of party admissions in a second-appeal.

A.N. Varma, J.

This is a plaintiffs' second-Appeal arising out of suit for injunction restraining the Defendants from interfering with the alleged right of plaintiffs to pass through a passage marked by the letters Ta, Tha, Da and Dha. The plaintiffs set up a case that they had prescribed title as an easementary right to pass through the aforesaid passage which incidentally is in front of the Defendants' house.

2. The suit was contested by the Defendants-Respondents alleging that the disputed land over which the plaintiffs were claiming right of passage was their 'Baithaka' and the same had vested in them u/s 9 of the U.P. Zamindari Abolition and Land Reforms Act. The Defendants denied that the plaintiffs were passing through the land in dispute, the passage marked by the aforesaid letters.

3. Relevant issues were framed by the trial court and on a considerations of the evidence which comprised the oral evidence of the parties as well as the Commissioner's report, the trial court decreed the plaintiffs' suit and restrained the Defendants from interfering with the plaintiffs' right of passage over the aforesaid land.

4. Aggrieved by the aforesaid decree the Defendants preferred an appeal which was allowed by the Additional District Judge. The learned Additional District Judge recorded two findings: One, that the disputed land is appurtenant to the plaintiff's, house and has, therefore, vested in them u/s 9 of the U.P. Act No. 1 of 1951, and second, that the finding that the plaintiffs have failed to establish that they were using the land in dispute as a passage for their bullock cart etc. or their cattle. In the premise, the appeal was allowed and the suit of the plaintiff-Respondents' was dismissed.

5. Against the decision of the lower appellate court the plaintiffs have preferred this second-appeal. The second-appeal has been admitted by this Court solely on the question which has been formulated by the learned Single Judge admitting the appeal in the following terms:

The substantial question of law involved in the case is whether the interference with the plaintiffs' claim to right of passage was violative of Rule 26(a)(iii) of the UP ZA and LR Rules, 1952.

6. Sri V.B. Khare, learned Counsel for the Appellants submits that even if it may be assumed that the disputed land had vested in the Defendants-Respondent's u/s 9 of the U.P. Act No. 1 of 1951, the plaintiffs still had a right to use the site as a passage for the purposes mentioned above. in support, the learned Counsel placed reliance on Clause (iii) of Rule 26(a) of the UP ZA and LR Rules read with Section 7(aa) of the UP ZA and LR Act.

7. Having heard learned Counsel for the parties I find no merit in the second appeal. Rule 26(a)(iii) provides that:

Subject to Sub-rule (b) the site of a well or building along with the area appurtenant there to situate within the limits of an estate shall be deemed to be settled with the owner of the said well or building on the following terms and conditions:

(i) ... .

(ii) ... .

(iii) He shall have the right to use the site for any purpose whatsoever subject to the existing rights to easement.

This rule has been enacted to give effect to the provisions of Section 7 of the aforesaid Act which saves the easementary right or rights analogous there to notwithstanding the abolition of Zamindari.

8. The question, however, is whether the plaintiffs did acquire any easementary right over the land in dispute. The lower appellate court has answered this issue in the negative and against the plaintiffs-Appellants. It considered the oral evidence led by the parties in the light of the facts found by the Commissioner as emerging from the report submitted by him and on a consideration of the evidence existing on the record and circumstances emerging there from it has found that the plaintiffs had failed to prove that they had enjoyed any right of passager over the disputed land. This finding of the lower appellate court is based on a consideration o