QAISER SIBTAIN Vs. DISTRICT JUDGE, ALLAHABAD AND OTHERS

JUDGEMENT

(1.) OPPOSITE parties Nos. 3 to 10 are the substituted plaintiffs in original suit No. 629 of 1987. In the plaint, the plaintiffs had claimed right of passage which has been shown in the map annexed to the plaint by demarcating the same in blue and red colours and described being the obstruction caused in blue colour passage by letter STUV and that in the red colour passage OPQR and accordingly made a prayer for mandatory injunction directing the defendants to remove the watt OPQR in red colour lane and STUV in blue colour lane.

(2.) ON the prayer of the learned counsel for the petitioner, leave is granted to amend the cause title so as to convert the petition tinder Article 227 of the Constitution of India.

(3.) MR . P.K. Shukla, learned counsel for the respondent No. 3 to 10, on the other hand, vehemently opposes the contention of Mr. Sharma. He points out that there is no infirmity of illegality in the order dated 16th April 1994. He further contends and draws my attention to the fact that the plaint was amended by incorporating the impugned construction at paragraph 10 of the plaint. Therefore, it cannot be said that it was outside the Scope of subject matter of the suit. He further claims that the property of defendant No. 11 is also used as passage by the plaintiff. According to him, by reason of the alleged construction made by defendant No. 11, the ingress and egress from the plaintiff's property has been closed. He contends, relying on the facts of the case, that the conduct of defendant No. 11 was so bad that he is not entitled to claim equality. The defendant has shown thorough negligence and want of diligence in his conduct all through. He has also pointed out that the brother of defendant No. 11 who is a practicing advocate of the trial court would have taken steps on behalf of defendant No. 11. The said brother is also a party to the suit as defendant No. 8. According to him, both the courts having found the matter concluded by concurrent findings of facts with which in exercise of the revisional jurisdiction, this court should not interfere. Therefore, the application is liable to be dismissed.