SULTAN AHMAD Vs. IRSHAD AHMAD

JUDGEMENT

(1.) A. P. Singh, J. In the present appeal, judgment and decree passed by the lower appellate Court dismissing Suit No. 344 of 1971 filed by the appellant, is under chal lenge on the ground that the lower appel late Court apart from misreading the statement of P. W. 1 and P. W. 2 which they made to prove the plaint case has also wrongly applied the bar of res judicata against them on the basis of the judgment and decree passed earlier in Original Suit No. 132 of 1962.

(2.) IN brief the case of the plaintiff-ap pellant was that the land in suit was being used by the entire residents of the locality (Mohalla Domanpura, in Maunath Bhan-jan City) as Rasta connecting the Govern ment road but the defendant tried to obstruct the Rasta by putting construction over it. He, therefore, sought injunction so as to restrain the defendants from making the construction and obstructing Rasta from the land in dispute. The case of the defendant-respondents on the other hand was that the land in suit was Chowk-Tkziya which was never used as Rasta. The Rasta according to the defendant lay towards east of the disputed land. The plaintiff-appellants got no right to file the suit for seeking injunction. It was further pleaded that one Abdul Karim was the real person who has filed the suit by procuring the signatures of the plaintiffs. The said Abdul Karim has first filed Suit No. 1311 of 1957 for the same earlier but despite fighting up this Court (High Court) he failed whereafter he got another suit filed through his mother Jasima Bibi being Suit No. 132 of 1962 but he again lost up to this Court (High Court ). Before the trial Court the parties led evidence P. W. 1, Abdu! Majid was examined by the plaintiffs who stated that since the time of his childhood the land in suit was being used as Rasta which connected the Government road with the village and people of the village too used it for going to the Government road. He also denied the suggestion that the Rasta did not exist there. Mohd. Ilyas, P. W. 2 (Plaintiff No. 2) also got himself examined. He also proved the plaint case asserting, inter alia, that the land in suit was being used as Rasta since the time he attained the age of discretion and the Rasta was being used by him as well as by all the residents of the locality for going to the Government road and the said right of Rasta from the land in suit was never obstructed by the defendants. The Rasta was being used without the per mission of anyone, there was no other Rasta for going to the Government road from the village.

(3.) WHILE coming to the aforesaid con clusions the lower-appellate Court ob served that P. Ws. 1 and 2 did not assert, in their examination-in-chief, that the said Rasta passed from the land in suit. The observations made in this respect by the lower appellate Court are as follows : "in the first place P. W 1 has not stated in his examination-in- chief about the plaintiffs right of way over the land in suit. " "in the first place P. W. 2 (wrongly written as P. W. 1) has not stated the period of user as required by Section 15 of Easement Act. "