ABDUL SATTAR Vs. LAXMAN PRASAD

JUDGEMENT

(1.) This appeal has been preferred by the defendant who has lost in both the courts. This Court vide order dated 02.11.1995 while admitting the appeal had formulated following substantial questions of law:-

(2.) Facts giving rise to filing of the appeal briefly stated are that the plaintiffs filed the suit seeking relief of declaration, permanent injunction as well as mandatory injunction. The claim in the suit is based on the ground that the plaintiffs and defendants are neighbours. On the northern side of the plaintiffs' house a passage which is 5 feet in width is situate. The aforesaid passage is being used by the plaintiffs as well as by the residents of the locality for past several years. However, the defendant No.1 caused obstruction in the plaintiffs' right of way over the passage in question in respect of an area show in yellow and pink colour in the plaint map. It is further pleaded that defendant has encroached an area admeasuring 1 feet X 19 feet Accordingly, the suit seeking relief of declaration that plaintiffs have acquired easementary right to use the passage in question was filed. The plaintiffs also sought the decree for mandatory injunction for removal of encroachment as well as permanent injunction restraining the defendants from causing obstruction over the right of the plaintiffs to use the passage.

(3.) The defendant No.1 filed the written statement in which the plaint map was denied. It was further pleaded that the passage in question, in fact, is not in existence. It was also pleaded that the area marked with red colour was kept open for the purpose of 'Nistar' of plaintiffs and defendant No.1. The defendant No.1 also denied that he has made any encroachment on the passage in question. The defendant No.2 in her written statement denied the averments made in the plaint and stated that she has not made any encroachment on the passage in question.