The implied use of a right of way for more than 20 years can be considered valid, and the jurisdiction of the trial court to decide ownership issues depends on the relief sought in the suit.

JUDGMENT :

Vivek Bharti Sharma, J.

Present second appeal is preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 31.03.2023, passed by 2nd Additional District Judge, Nainital in Civil Appeal No. 7 of 2018, whereby appellate court dismissed the first appeal and upheld the judgment and decree dated 25.11.2017, passed by the trial court thereby decreeing the suit in Civil Suit No. 86 of 2007 in favour of respondent/plaintiff.

2. Brief facts of the case are that the respondent/plaintiff filed a suit for permanent injunction and easement right in the court of Civil Judge (Junior Division), Nainital against the appellant/defendant, as Civil Suit No. 86 of 2007. Along with the plaint, an application under Order 39 Rule 1 and 2 of C.P.C. for grant of interim injunction was also filed by the respondent/plaintiff. The appellant/defendant filed the written statement and denied all the allegations contained in the plaint. The oral and documentary evidence were adduced by the parties and after completion of the evidence, the trial court by the impugned judgment and order dated 25.11.2017 was partly allowed the said suit.

3. Feeling aggrieved by the same, the appellant/defendant filed the Civil Appeal No.7 of the 2018 wherein the 1st Appellate Court upheld the judgment dated 25.11.2017 by dismissing the appeal vide judgment and decree dated 31.03.2023. Hence, the present second appeal.

4. Heard learned counsel for the parties and perused the impugned judgments, memo of appeal and documents filed therewith.

5. Counsel for the appellant/defendant would submit that the judgments of the trial court as well as the First Appellate Court are bad in the eyes of law for the reasons that the trial court and the First Appellate Court grossly erred in not appreciating the fact that the respondent/plaintiff has miserably failed to state in his plaint that he has unobstructed access and right to way through the land i.e. Khasra No. 1239 of the appellant for reaching his Khet No. 1240l, 1248, 1250, 1251 situated at Village Aanu, Tehsil & District Nainital for the last 20 years from the date of filing of the plaint; that, the trial court has erred in law in framing the Issue No. 1 i.e. as to whether the respondent/plaintiff has Bhoomidhari transferable rights in agriculture land in possession of Khet No. 1240l, 1248, 1250, 1251 situated at Village Aanu, Tehsil & District Nainital, if yes it’s effect?; that, this issue could not have been decided by the trial court for the reason that the same is barred under Section 331A of U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short “U.P.Z.A. & L.R. Act”); that, as per the provisions of U.P.Z.A.L.R. Act, this issue could have been decided by the Revenue Court only. He would further submit that the trial court and the First Appellate Court further erred in not appreciating the fact that the appellant/defendant had also erected a Gate on the property in question which was purchased by it in the year 1987, however, he admitted that this plea was not taken by appellant in its written statement before the trial court.

6. Perusal of the plaint annexed with the memo of appeal shows that it is nowhere stated in the plaint that for the last 20 years from the date of filing of the plaint, the respondent/plaintiff had been using the access as right of way through Khet No. 1239 of appellant for reaching his Khet No. 1240l, 1248, 1250, 1251 Village Aanu, Tehsil & District Nainital. However, in Paragraph no. 6 of the plaint, it is specifically stated that respondent/plaintiff had been cultivating his fields from the time of his forefathers by crossing through Khet (fields) of the appellant/defendant because there is no access to any Khet in the villages without crossing through the field of others, and therefore, this easement right is available in practice.

7. Counsel for the appellant/defendant would rely upon a judgment of Hon’ble Supreme Court in the case of “