NOOR MOHD Vs. MOHD SAFI

JUDGEMENT

(1.) I have heard learned counsel for the parties and perused the record.

(2.) This is a plaintiff's second appeal against the judgment and decree dated 09.10.1985 passed by the Additional Civil Judge, Mainpuri in Civil Appeal No. 11 of 1981 by which the judgment and decree dated 21.11.1980 passed by the Munsif, Sikohabad, district Mainpuri, in Original Suit No. 323 of 1969, has been set aside and the plaintiff's suit has been dismissed with costs to be borne by the respective parties.

(3.) The Original Suit No.323 of 1969 was instituted by the plaintiff-appellant for permanent prohibitory injunction so as to restrain the defendant including their agents, etc. from interfering with the usage of Rasta, 11 feet wide (North-South) and 63 feet long (East-West) shown by letters A, B, S, R in the plaint. The plaint case was that the plaintiff was owner in possession of house (shown by letters A, B, C, D, E, F, G, H, I, J, K, L, M, N and A in the plaint map) including the Maraiya and Chabutra (shown by letters A, O, P, Q in the plaint map), situated at Sarai at Sikohabad, District Mainpuri, and had been in possession since the time of their ancestors. It was pleaded that the portion shown by letters A, B, S, R (the disputed Rasta) had been used by the plaintiff for ingress and egress to / from their house as well as Maraiya and Chabutra. In the plaint it was admitted that the defendant's house was situated on the South of the Rasta in question and the defendant's door opened on the said Rasta. It was claimed that the defendant had also being using the land in dispute as Rasta of their house. Thus, the plea was that the disputed portion was a common Rasta of the plaintiff and the defendant. Later, by an amendment, a plea was raised that apart from the disputed Rasta, there was no other Rasta available to the plaintiff for access to their property.