JUDGMENT After arguing for some time, the learned Counsel appearing for the respondents defendants submit that, liberty be given to the respondents defendants to file a suit for declaration of his easementary right and consequential relief of permanent injunction. 2. Appellant is the plaintiff. He has filed a suit for permanent injunction restraining the defendants from interfering with the suit schedule property. The defendants set up a claim that, they have got easementary right to use the 20 feet road on the land of the appellant on the southern side and it is stated that, the land of the appellant as well as the defendants belongs to the common vendor and in view of the division, the defendants have got easementary right of way through the land of the plaintiff. 3. The Trial Court considering the defence and also considering the nature of suit, dismissed the suit by observing that the defendants have got right of way through the land of the plaintiff. The lower Appellate Court also confirmed the said judgment and decree. However, it also observed that, the plaintiff to set apart 20 feet road for the benefit of the defendant 1. It is against both the judgments, this appeal has been filed. 4. This Court by order dated 2-8-2004 admitted the appeal on the following substantial questions of law: (i) Whether the Courts below can grant relief to the defendants where there is no prayer for easement of necessity in the absence of sufficient Court fee being paid? (ii) Whether the defendants can be given the status of a claimant for declaration in a bare injunction suit filed by the plaintiffs? (iii) Whether the Courts below can accept the Commissioner's report only on account of Tahsildar's Mahazar, ignoring Government records? 5. Admittedly, the defendants have neither set up a counter-claim nor have filed a suit for declaration to declare that, they have got easementary right over the suit schedule property. There is no dispute that the plaintiff is the owner of the suit schedule property. If the defendants want to claim a right of way through the land of the plaintiff, they are required to establish their right. There is no counter-claim nor defendants have filed any suit for declaration. I find to the extent that the defendants have got easementary right is concern, there is no suit or counter-claim. If the defendants want to claim a right of way through the land of the plaintiff, they are required to establish their right. There is no counter-claim nor defendants have filed any suit for declaration. I find to the extent that the defendants have got easementary right is concern, there is no suit or counter-claim. The Trial Court should have confined the issue as regard to the grant of decree for permanent injunction and not beyond this Issue. 6. Since concurrently found that the plaintiff has not proved his case for permanent injunction, no ground to interfere with the said finding. 7. At this stage, the learned Counsel has filed a memo inter alia stating that, the defendants respondents be permitted to file a suit for declaration and also seek for consequential injunction. In view of the said memo, I pass the following: ORDER This appeal is disposed of. To the extent of observation that the defendants have proved their easementary right over the suit schedule property is concerned, same is set aside. The judgment and decree rejecting the injunction is also confirmed. However, liberty is given to the appellant -to file a suit for declaration of his easementary right in accordance with law and also seek consequential relief of permanent injunction and he may also seek appropriate relief for temporary injunction. If such suit and application is filed, the Trial Court taking into consideration the material produced by the respondents, consider the same and pass appropriate order/judgment. The Trial Court while considering the suit filed by the defendants, shall not be influenced by any observation made in this proceeding and it shall dispose of the same independently on the basis of the evidence and material produced before it.