The captioned regular second appeal is filed by

unsuccessful defendants wherein both the courts below

decreed the suit filed by respondents/plaintiffs declaring

that respondents/plaintiffs have acquired right by way of

easement of necessity in Sy.No.115/1D of Kadwad village

as shown in suit hand sketch and consequently both the

courts below have granted perpetual injunction thereby

restraining

the

present

appellants/defendants

from

disturbing peaceful enjoyment and usage of suit path.

2.

Facts leading to the case are that:

Respondents/plaintiffs filed a suit for declaration

claiming easementary right and consequential relief of

injunction. Respondents/plaintiffs specifically contended

that suit land bearing Sy.No.115 was originally owned by

one Ghanshyam, which was cultivated by ancestors of

plaintiffs and defendants. Respondents/plaintiffs further

contended that there is residential house in the said land.

4

Respondents/plaintiffs further contended that suit land was

subsequently divided into separate pot hissas based on

actual possession. Based on actual possession, the parties

submitted form No.7 seeking grant of occupancy right and

the

Land

Tribunal

has

conferred

occupancy

rights.

Respondents/plaintiffs

specifically

contended

that

appellants/defendants were granted occupancy rights to an

extent

of

33

guntas

in

Sy.No.115/1D.

Respondents/plaintiffs

have

specifically

pleaded

that

Sy.No.115/1D which is divided into pot hissa constitutes

eastern half of entire suit survey number, which is

surrounded by paddy field. Respondents/plaintiffs further

claimed that there is a Karwad/Kadwad public road.

Respondents/plaintiffs have taken a specific contention that

since the time of their ancestors they are using pathway,

which is depicted in the hand sketch annexed along with

the plaint. Respondents/plaintiffs specifically contended

that there is pathway of four feet which runs across

Sy.No.63

from

South-East

corner

of

Sy.No.63

and

5

thereafter it passes through boundary line of Sy.Nos.115

and 114. On these set of pleadings, respondents/plaintiffs

filed a suit asserting easmentary right over the suit

pathway.

3.

The

appellants/defendants

on

receipt

of

summons contested the proceedings and stoutly denied the

entire averments made in the plaint and specifically

contended that there is a panchayat road on the extreme

south of Sy.No.115/1D and there is also separate pathway

on the western side of boundary of Sy.No.115/1D.

Therefore, appellants/defendants contended that these two

alternate roads are being used by respondents/plaintiffs

and as such, they are not entitled for relief of declaration of

easmentary right as claimed in the plaint.

4.

Both the parties to substantiate their claim let in

oral and documentary evidence. Respondents/plaintiffs

examined two witnesses and relied on documentary

evidence vide Exs.P1 to P12. By way of rebuttal evidence,

6

appellants/defendants examined one witness as D.W.1 and

relied on documentary evidence vide Exs.D1 to D10.

During the pendency of the suit, Commissioner was

appointed and based on memo of instructions, he visited

the spot and submitted his report. The trial court having

assessed

oral

and

documentary

evidence

and

also

Commissioner’s report has come to the conclusion that

respondents/plaintiffs

have

succeeded

in

establishing

existence of pathway and that they have been using it

since the time of their ancestors. However, the claim made

by respondents/plaintiffs in regard to alleged existence of

public well in Sy.No.115/1D was negatived by the trial

court. The trial court having referred to the Commissioner’s

report has recorded a categorical finding that evidence on

record

clearly

demonstrate

existence

of

pathway.

Therefore,

the

trial

court

was

of

the

view

that

respondents/plaintiffs are entitled to use the pathway and

therefore, they have got easmentary right in the suit

schedule property. Accordingly, proceeded to grant the

7

relief of declaration by holding that respondents/plaintiffs

have