(1.) DEFENDANT No. 5 has filed the instant appeal challenging the judgment and decree of the Lower Appellate Court whereby suit of the plaintiff -respondent has been decreed against the defendants restraining them not to encroach upon any part of private Pahi and not to raise construction or cause obstruction to the plaintiff from the use of said Pahi fully described in the site plan Ex. P -2. Briefly stated, Isher Dass, plaintiff -respondent filed a suit against the proforma respondents and the appellant restraining them from encroaching upon any part of private Pahi which belongs to him and not to raise any construction and further not to obstruct the plaintiff from the use of said Pahi which leads to his land from the road side, as detailed in the site plan. It was further alleged in the suit that the plaintiff -respondent is the owner in possession of the land measuring 2/12/11 bearing Khata No. 181/394, Khasra Nos. 1369/1300/1186/437/0 -16 -1, 1191/437/1 -16 -10 in V. Bhojowali as per copy of jamabandi for the year 1997 -98 and he took the Pahi in dispute from Pal Dass, father of proforma respondents, in lieu of land left for him as Pahi from other fields. This exchange was effected vide writing dated 10.11.1971 which was signed/thumb marked by the parties and since then the plaintiff -respondent was using the said Pahi which is also shown in Akas Latha of the Revenue Department. This Pahi is the only way to reach the fields of the plaintiff -respondent but the defendants were threatening to encroach upon the said Pahi and to obstruct the use of Pahi. Hence the suit.
(2.) UPON notice, defendants filed written statement raising various preliminary objections. On merits, the ownership of the plaintiff -respondent on the land, as mentioned in the foregoing paragraphs, was denied stating that one Smt. Simro @ Silo daughter of Barkha Dass was owner of land bearing Khasra No. 437/1 and 437/3 i.e. 2 Bighas 5 Biswas and 11 Biswas and she transferred the same in favour of Pal Dass, father of proforma respondents. He was also owner in possession of 26 -7/8 Karams towards East 27 Karams towards West, 23 Karams towards North and 23 Karams towards southern side out of Khasra No. 437/1 i.e. 1 -10 -19 -1/2 and 11 Karams towards east, 11 Karams towards West, 27 Karams towards North and 26 Karams towards southern side out of Khasra No. 437/2 i.e. 0 -14 -11 -1/2 totaling 2 -5 -11 and mutation No. 1479 dated 23.2.1976 was sanctioned in favour of Pal Dass. Thereafter, Pal Singh sold land measuring 0 -14 Biswas out of Khasra No. 437/1 adjoining to Khasra No. 437/2 owned by the plaintiff, who sold the same to Inder Singh. Pal Dass sold 0 -14 Biswas to Malkiat Singh who constructed his house over some part of the property as shown in the site plan and Malkiat Singh left 8 -1/2 feet wide space out of said property to reach his land and after constructing mangers in the space left by him for cattle and the plaintiff -respondent has no concern with the same. It was denied that the plaintiff -respondent took Pahi from Pal Dass, father of defendant No. 1 to 4 or the plaintiff left the Pahi to Pal Dass from other fields. The execution of writing dated 10.11.1971 has also been denied and submitted that since Pal Dass was not owner of the alleged property in the year 1971, the question of making alleged exchange will the plaintiff does not arise. So, the writing is forged and fabricated and Pal Dass never signed the same and submitted that when no Pahi is in existence at the spot nor has been shown in the Akas Latha, the question of using the same does not arise and submitted that the plaintiff -respondent used to reach his property in Khasra No. 437/4 through Khasra No. 437/2, but the plaintiff had sold the entire Khasra No. 437/2 to Inder Singh and no passage was kept at that time out of Khasra No. 437/2 to his property to reach Khasra No. 437/4 and now plaintiff -respondent wants to use the property of the defendants as passage illegally. The other averments of the plaint were contested and prayed for dismissal of the suit.
(3.) WHETHER the plaintiff filed the suit on wrong facts and concealing the true facts? OPD