ITTAR Vs. VARKY

JUDGEMENT

(1.) Two suits were tried jointly by the trial court. Those suits were numbered OS 209/2007 and OS 212/2007. The appellant in RSA 505/2013 was the plaintiff in OS 212/2007. He was the second defendant in OS 209/2007. The other appellants in RSA 504/2013 were the other defendants in OS 209/2007. The respondents in RSA 504/2013 were the plaintiffs in OS 209/2007. The first respondent in RSA 504/2013 who is the sole respondent in RSA 505/2013 was the sole defendant in OS 212/2007. Both the suits were for injunction. The trial court dismissed both the suits. The respective plaintiffs filed appeals. The lower appellate court in AS 55/2009 confirmed the dismissal of OS 212/2007. AS 70/2008 was allowed to decree OS 209/2007. The appellants in RSA 504/2013 were restrained by injunction from causing obstruction to the construction of boundary walls around the property of the respondents, from encroaching upon the said property, demolishing its boundary walls and from obliterating the present lie and nature of the property. The parties are referred to in this judgment as appellants and respondents.

(2.) The property of the appellants and the property of the respondents lie adjacent to each other. The appellants' property lies on the western side of the property of the respondents. The parties have no claim in the property of each other except on a strip of land which is shown in the B schedule property to the plaint OS 212/2007. The same is a pathway according to the appellants and a portion of the property of the respondents according to them. The respondents deny the existence of any such pathway. They filed their suit seeking injunction alleging that the appellants attempted to form a pathway through the property of the respondents. The appellants contended that the respondents attempted to annex the existing pathway to the property of the respondents.

(3.) OS 209/2007 was taken as the leading case by the trial court for recording evidence. PWs 1 and 2 were examined and Exts A1 and A2 were marked on the side of the respondents. DW1 was examined and Exts B1 to B3 were marked on the side of the appellants. Exts C1 to C2(a) were also marked.