ATMA RAM Vs. ONKAR SINGH

JUDGEMENT

(1.) The appellants are the successors-in-interest of defendant No. 1 and having lost before both the Courts below have filed the instant Regular Second Appeal. (Parties hereinafter shall be referred to as the 'Plaintiffs' and 'defendants').

(2.) The plaintiff/respondent No. 1 filed a suit for permanent injunction restraining the defendant No. 1 from interfering in any manner and causing any sort of obstruction in the right of passage and further restraining him from encroaching upon and from raising any sort of construction over the passage comprised in Khasra No. 433, Khewat No. 943, Khatauni No. 1285, measuring 0-18 marlas as entered in the jamabandi for the year 1980-81. It was averred that the plaintiff alongwith the other residents of the village had their abadi and landed property in village Amb since the time of their ancestors and the aforesaid land was classified in the revenue record as "Share-aam-rasta" and being used by the villagers since the time immemorial and on such basis claimed the right of easement of prescription as well as easement of necessity and thereby prayed for decree for permanent injunction and in alternate for mandatory injunction on the ground that defendant No. 1 alongwith Pradhan of the Gram Panchayat was trying to block the passage by storing dry fuel wood without any right, title or interest.

(3.) In the written statement filed by defendant No. 1, preliminary objections regarding maintainability, better particulars, estoppel, cause of action etc. were raised. On merit, it was contended that the abadi of the plaintiff in the village was not disputed, however, it was denied that there was a passage and rather it was claimed that the suit land falls inside the gate of the abadi of defendant No. 1 and the entries in the revenue record showing suit land as passage are absolutely wrong, false and illegal and were the result of connivance of the plaintiff with the revenue field staff because the plaintiff himself retired as Patwari.