ABDUL KARLM Vs. IRSHAD AHMAD

JUDGEMENT

(1.) A. P. Singh, J. A representative suit No. 477 of 1969 was filed by Safiullah and Kamaruddin Irshad Mohammad, Wakeel Ahmad and Shakeel Ahmad are the sons of Irshad Ahmad who have been substituted as plaintiffs after the death of Safiullah. The suit was filed in representative capacity under Order 1, Rule 8 of the Civil Procedure Code with the permission of the Court. Relief sought in the suit was that the defendants, present appellant, Abdul Kareem be restrained by permanent in junction from interfering with plaintiffs' right to lay brick soling (Kharanja) on land shown in the plaint map by letters Al, A2, H and not to cause hindrance in plaintiffs right of passage from the land lying after the land dispute (Jamin tahati majkoor ). Further prayer was for issue of a man datory direction to defendants to demolish the Chabutara shown by letters Al, A2, A6 and Zeena (stairs) shown by letters X, Y, Z existing on the land in dispute and to re store the Rasta (passage) on the land lying after the land in suit (on jamin tahati) in its original condition failing which it should be demolished through the Court.

(2.) THE defendants denied existence of Rasta (passage) from land A, Al, A2 and H and pleaded that this was the Sahan of their house in use from before the time they had purchased the house from one Sri Mohan Kundu. According to defendants Mohan Kundu had laid brick soling over the Sahan land and was running a shop for selling Takauri' over the said land. After purchase of the house of Mohan the defen dants replaced the brick soling with new bricks and thereafter the Chabutara and stairs were constructed on the said Sahan land for the better enjoyment of the house by them. THE showed that the Rasta (pas sage) passed or the south of the Sahan land (land in dispute) on which brick soling of Nagar Palika was already there which was quite different from the brick soling put by Mohan and then by defen dant.

(3.) THERE has been score of litigation between different set of persons in respect of the Rasta (passage) which is involved in the suit. On one or the other score reliance on maps filed either with the plaint or with the written statement or the one's prepared by Commissioners with their reports in earlier suits has been sought by both the parties to derive help for proving their respective pleadings ; that apart other documents suggesting admission made by plaintiff No. 1 about the land in suit being Sahan land too has been filed. Apart from the voluminous documentary Evidence the parties also produced wit nesses in support of their plea. Whereas plaintiffs produced four witnesses defen dants produced two.