NAROTTAM SANABAD Vs. MINAKETAN SANABAD AND OTHERS

JUDGEMENT

(1.) This appeal challenges the correctness of the judgment and decree dated 29.3.1997 and 11.4.1997 passed by learned District Judge, Sambalpur in T.A.No.12 of 1991 dismissing the same and thereby confirming the judgment and decree dated 7.12.1990 and 28.3.1991 passed by the learned Munsif, Sambalpur in T.S.No.44 of 1989.

(2.) The appellants are the plaintiffs against a confirming judgment. Be it mentioned here that during pendency of the appeal, appellant no.1 died, whereafter his legal representatives have been substituted as appellants 1 (a) to 1 (d). Respondent no.1 died and was expunged pursuant to the order of this Court. Similarly, respondents 2 and 3 died, whereafter their legal representatives have been substituted as 2(a) to 2(e) and 3 (a) respectively. The dispute pertains to a strip of land appertaining to M.S.Plot No.1027, khata No.503, area Ac.0.01 dec. of mouza -Dhanupali. The case of the plaintiffs is that the suit schedule land is a passage. The same is a part of M.S. Plot No.1027 and not Plot No.1028. They use the passage for their egress and ingress from their residential house to the village road exclusively since the time of their forefathers. The defendants, who have no semblance of right, title and interest over the same, have managed to prepare M.S.Plot No.1028 as a part and parcel of M.S.Plot No.1027. When they threatened to obstruct the passage, the plaintiffs instituted the suit for declaration of easementary right of passage over M.S.Plot No.1027, correction of R.O.R. of plot no.1028 and permanent injunction.

(3.) Pursuant to issuance of summons, defendants 1, 2 and 4 entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendants is that the suit is barred for non - compliance of notice under Section 80 C.P.C. on the State of Orissa, defendant no.7. It is their specific case that the suit passage is a part and parcel of M.S.Plot No.1028. The same is used by them as passage to their house and cow shed.