SYED MANZOOR HUSSAIN Vs. HAKIM ALI AHMAD

JUDGEMENT

(1.) This is a plaintiff's second appeal. The appellants are the heirs and legal representatives of the plaintiff Syed Manzoor Hussain.

(2.) The property, bearing at present municipal No. 97/120 of Talaq Mohal at Kanpur, was originally purchased by one Syed Moqbool Hassain in. the name of his wife Mst. Sayeeda Khatton through a sale deed dated 9th Aug., 1937 from one Mohd, Ishhaq. The sale deed provided that a strip of land four feet wide shall be left for the purposes of passage to the mosque which is situate to the north of the property. The land of passage is shown by letters 'A' 'B' 'C' 'D' on the map annexed to the plaint. The dispute relates to this passage. It is undisputed that the deceased plaintiff Syed Manzoor Hussain became the owner of the property by way of transfer. According to the plaintiff's case a number of doors and windows etc.. of the house No. 97/120, which was situate on both the sides of the passage land, opened on it. The plaintiffs and their predecessors-in-interest also used this land as a passage.

(3.) The mosque is known as Masjid Ramzani Paniwala. The four defendants were the office-bearers of the managing committee of the mosque and were actually managing the affairs of the mosque. The main door of the mosque was alleged to be towards west and the strip of land 'A' 'B' 'C' 'D' was used as a passage by the residents of house Nos. 97/120 and 97/119. It also appears that the members of the public also passed through this passage for going into the mosque. The plaintiff's complaint was that on 14th April, 1963 the defendants put up a door with mansonry constructions and thus obstructed the tree use of the passage by the plaintiffs. There were protests from the side of the plaintiffs and even a report was made at the police station. A notice was also served calling upon the defendants to remove the door but to no effect. Hence the suit. It was also pleaded by the plaintiffs in the alternative that in case they were held not to be the owners of the land of the passage 'A' 'B' 'C' 'D', they must be deemed to have acquired easementary right of passage through it by prescription, having used it as such for more than twenty years.