The suit for injunction was resisted claiming prescriptive right of easement of way by the defendants. Apart from claiming prescriptive right of easement, as defence the defendants laid a counter claim raising the same claim. Surprisingly enough, neither to establish the defence nor in support of the counter claim did the defendants adduced any evidence. On the other hand, it is clear from the very nature of the admission by the defendants that the plaintiff is the owner of the property and he is in possession. This is clear from the defence set up that the defendants are claiming a right in derogation of the right enjoyed by the plaintiff and it is for the defendants to establish the said fact. Both the courts below have found that in the absence of any evidence, the counter claim cannot succeed. In the light of the counter claim raised, the apprehension expressed by the plaintiff stood proved. For the above reason, the trial court dismissed the counter claim and decreed the suit. The appellate court confirmed the same.
2. Learned counsel appearing for the appellants pointed out that irrespective of the facts of the case, the court had to independently consider the claim in the suit which is more precise and it is pointed out that the plaintiff will have to establish his exclusive possession to get a decree for injunction.
3. The defence made no attempt to show by evidence that the plaintiff has no exclusive possession over the property. Instead they set up a defence of a right of way. Not satisfied with the contention of way, they also preferred a counter claim raising prescriptive right of easement over the way. In spite of the above contention and claim, the defendants thought it unnecessary to adduce evidence regarding the plea resulting in rejection of the claim. In the light of the fact that they claim a right to use a portion of the property of the plaintiff as a way, it certainly creates an apprehension in the mind of the court that there might be a trespass, which is sufficient cause for the plaintiff to lay the suit. Therefore, the courts below were perfectly justified in decreeing the suit and dismissing the appeal.
There are no merits in these appeals. Accordingly they are dismissed.
P. BHAVADASAN, JUDGE sb.