CAV ORDER

Heard.

1. This petition has been brought being aggrieved by the order dated 2.8.2019 passed by the Learned Second Additional District Judge, Bilaspur in M.C.A. No. 22 of 2019, whereby the learned Court dismissed the appeal upholding the order of rejection passed by the Civil Judge, Class-II on an application under Order 39 Rule 1 and 2 of the CPC filed by the petitioner in Civil Suit No. 207-A of 2018.

2. It is submitted by counsel for the petitioner, that the claim of the petitioner is based on the right of easement of necessity. The petitioner has filed the civil suit and pleaded that she was born in the house situated in Jawahar Bada and residing continuously since then. The husband of the petitioner had entered into an agreement with Chironji Lal for the purpose of purchasing the house, in which the petitioner and her husband were residing in the year 1994, however, that agreement was not performed. The respondent has purchased some area of Jawahar Bada in the year 2010. On 21.6.2017, the respondent has raised construction and fixed a gate on the public path which is situated in Nazul land, Street No.27, Plot No. 156 and the measuring area is 260 sq. ft. Because of the obstruction in the way of the petitioner; a complaint was given to the police on 22.6.2017. The obstruction on the path of the petitioner is still continuing because of which, the petitioner and the other tenants of Jawahar Bada are getting affected. It is pleaded that the petitioner had been using the disputed path from her childhood, therefore, the obstruction by construction is illegal and unauthorized and on that basis, relief of easementary right of way has to be restored.

3. The application under Order 39 Rule 1 & 2 of the CPC filed by the petitioner was firstly dismissed by the trial Court and then the appeal filed by the petitioner has also been dismissed by the Appellate Court in the impugned order. It is further submitted that the petitioner has the right of easement available on the basis of the easementary right and also on the basis of the necessity. Apart from that, it is also submitted that the petitioner has also acquired title over the disputed path on the basis of her continuous and adverse possession.

Reliance has been placed on the judgment of Rajasthan High Court in the case of Birma Ram and Others vs. Teja Ram & Others in Civil Misc. Appeal No. 1251 of 2010 dated 1.12.2010, on the judgment of Karnataka High Court in the case of A.S. Umeshappa and Ors. vs. C. Byrappa and Ors. in W.P. 16582 of 2012 dated 31.07.2012 and on the judgment of Supreme Court in the case of Sree Swayam Prakash Ashramam and Anr. vs. G. Anandavally Amma and Ors. in Civil Appeal No. 7 of 2010 dated 05.01.2010. On the basis of these judgments, the petition be allowed and the relief be granted to the petitioner.

4. Learned counsel for the respondent opposes the submissions of the petitioner's counsel and submits that there is no proof in support of the pleading of the petitioner, that the path which was used by her was a public path. It is a clear case of landlord and tenant. The petitioner has suppressed the facts present that a suit for eviction was brought against the petitioner by her landlord and that Civil Suit No.33A of 2005 has been decreed by the judgment dated 25.1.2006 in favour of the plaintiff. The appeal preferred was dismissed then the second appeal before the High Court and the SLP before the Supreme Court, also have been dismissed. The petitioner was evicted from the suit property in execution, but the petitioner has forcefully repossessed the house of the landlord. In this connection, a criminal case was registered against the petitioner under Sections 341 and 448 of the IPC, in which she was convicted by the trial Court; her conviction was confirmed by the Sessions Court in appeal and thereafter, the criminal revision is pending before this High Court.

5. It is submitted by counsel for the respondent, that even if it is considered that the petit