The judgment emphasizes the requirement to establish an easementary right by prescription under Section 15 of the Indian Easements Act, 1882, and the impact of interruptions on the period of user.

Prafulla C. Pant, J.

1. This appeal, preferred under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 9.5.1988, passed in Original Suit No. 8 of 1986, by the learned District Judge, Tehri Garhwal, whereby said suit is decreed with costs for perpetual injunction against the defendants (appellants) restraining them from creating any obstruction over land in dispute against the right of plaintiffs (respondents) to use it as a pathway. The trial court has further decreed the suit for Rs. 3,000 as damages.

2. Heard learned Counsel for the parties and perused the entire record.

3. As per the plaint case, the plaintiffs are residents of village Moliya, Patti Upli Ramoli, District Tehri Gahrwal. From the period of their ancestors it is alleged that they were using the plot No. 1356 situated in Semalhari Tok, owned by the defendants No. 1 and 2 as pathway for reaching to the plots owned by them (plaintiffs). It is further pleaded by the plaintiffs that they were using said land in that manner for over fifty years, openly and as of right. Claiming the easementary right, it is alleged by the plaintiffs that on 21.2.1983, they were obstructed by the defendants No. 2 in their user of the above plot as pathway, and thereafter, raised a wall obstructing the pathway. The wall was removed on 6.3.1983 but pathway was again closed by the defendants No. 1 and 2. On this, the proceedings under Section 147 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr. P.C.) were initiated against defendants No. 1 and 2, before the Sub-Divisional Magistrate, Tehri, in which an order was passed in favour of the plaintiffs directing defendants No. 1 and 2 to remove the obstruction, till the rights are determined from a competent court. It is further pleaded in the plaint that to save themselves from the order of the Magistrate defendants Nos. 1 and 2 instituted a suit No. 54 of 1983 against the plaintiffs/respondents seeking permanent injunction, but said suit was later on withdrawn by the defendants. By amending the plaint, it is further pleaded that again the defendants No. 1 and 2 raised the wall and there was another round of litigation before the criminal court. With these allegations. Suit No. 8 of 1986 was filed by the plaintiffs on 6.2.1986 alleging that the cause of action has arisen to them on 22.2.1983. When wall was raised by defendants No. 1 and 2 over their plot No. 1356 preventing thereby plaintiffs to use it as passage to their fields.

4. Defendants No. 1 and 2 contested the suit and filed the written statement denying the easementary rights claimed by the plaintiffs. It is pleaded in the written statement that the plaintiffs have a separate way to reach to their plots. It is further pleaded in the written statement that the plaintiffs forcibly want to use the defendants' plot No. 1356, as a pathway to reach their fields. As to the proceedings under Section 147, Cr. P.C, the allegations contained in the plaint are admitted by the answering defendants.

5. Learned trial court on the basis of the pleadings of the parties, framed following issues:

(1) Whether, the plaintiffs have a right of way through plot No, 1356, as claimed in the plaint?

(2) Is the suit barred by time as alleged in para 17 of the written statement?

(3) Whether, the defendants are estopped from denying plaintiffs' right of way and passage, as alleged in para 5 of the amended plaint?

(4) Whether, the plaintiffs have been deprived of six crops on account of the defendants action and have they suffered loss of Rs. 6,000, as alleged?

(5) To what relief, if any, the plaintiffs are entitled?

6. After recording the evidence and hearing the parties, the trial court found that the plaintiffs have been successful in proving easementary right acquired by prescription over plot No. 1356 of the defendants No. 1 and 2. It further found that the neither the plaintiffs' suit is barred by time nor the defendants are estopped from den