BRAJARAJ MISHRA Vs. ANANDA CHANDRA MISHRA

JUDGEMENT

(1.) Defendants are appellants before this Court against a confirming judgment.

(2.) Respondents have filed the suit for a declaration that they and defendants-appellants have joint title over the suit property and issue of direction to the defendants-appellants to remove the construction put by them over the suit land. The case of the plaintiffs-respondents is that they and defendants-appellants originally belonged to a joint family and are separate for last 4 to 5 generations. The parties have some joint properties like tank and common passage. The houses and baris of the defendants-appellants and some of the respondents lie to the south of the village road running from East to West and houses of some of the respondents lie to the North of village road, but their baris lie to the South of the village road. The suit property measuring 17 links in length from North to South having a width of 5 links on the Northern side and 8 links on the Southern side lies to the South of the village road and homestead of the defendants-appellants lies to the adjoining West and the house of plaintiff No. 7 lies to the adjoining East of the suit land. it is alleged that this disputed strip of land had been kept joint by the ancestors of the parties for use as common passage for the family members of the parties and this passage is used for going to the bari from the village road. In the settlement R.O.R. of the year, 1930 the land appertains to plot No. 166 corresponding to Hal plot No. 164. The plaintiffs allege that in the year, 1966 the defendants and the father of defendants 1 and 2 tried to close the disputed common passage from the North side giving rise to a proceeding under Section 147, Cr.P.C. The said proceeding was dropped on the basis of an undertaking given by defendants and father of defendants 1 and 2 that they would maintain the said passage and would not put any obstruction. However, after the death of the father of defendants 1 and 2, they again created disturbance and obstructed the disputed passage by fixing a door on the North and raising wall on the Southern side and thereby they have amalgamated the suit passage with their homestead lands. On these allegations, the suit had been filed.

(3.) Defendants-appellants filed a joint written statement refuting the claim of the plaintiffs-respondents. According to the defendants-appellants the suit property is a part and parcel of the homestead and was never used as a passage by the plaintiffs-respondents.