NARINDER KUMAR Vs. AJMER SINGH

JUDGEMENT

(1.) ALLOWED . In view of grounds mentioned in application, delay of 241 days in re -filing the present appeal is condoned. The suit out of which this regular second appeal arises was for mandatory and permanent injunction whereby respondents - plaintiffs had prayed for mandatory injunction directing the defendant to restore 10 ft. wide passage as described in the head - note of the plaint and also prayed for permanent injunction restraining the defendant from alienating, transferring, mortgaging, cultivating, sowing or interfering in any manner in the peaceful use of the said passage by them.

(2.) THE Court of first instance decreed the suit vide judgment and decree dated 01.02.2007. Feeling aggrieved, the defendant preferred an appeal which was dismissed by lower Appellate Court vide judgment and decree dated 23.08.2010.

(3.) UPON notice, the defendant put in appearance and filed written statement by taking various preliminary objections. On merits, it is averred that the defendant never executed any sale deed in favour of the plaintiffs. The land comprised in khasra nos.78(0 - 2), 301 (7 -13), 304 (6 -5), 305(2 -13), 306 (6 -5), 307 (6 -5), 309 (6 -5), 310(7 -12), 312 (3 -2), 313 (3 -13) is a joint property of the defendant along with Satish Kumar, Chaman Lal, Promila Devi and Shanti Devi. No passage was ever provided to the plaintiffs. The entire land of khewat no.25 is agricultural land and crops are sown therein. There is no passage in existence at the spot in khasra no.307. In order to controvert the averments made in written statement, the plaintiffs filed replication reiterating the averments made in plaint and denying the averments made in written statement. On pleadings of parties, the Court of first instance framed following issues: