NUNIA MAL Vs. MAHA DEV

JUDGEMENT

(1.) This is a defendants' appeal from the judgment and decree of the District Judge, Hissar, Reversing that of the Senior Subordinate Judge, Hissar, who dismissed the plaintiff's suit. The pedigree-table of the plaintiff and of the predecessor-in-interest of the defendants is given below:RAMJI DASS Hari Lal Chandu Lal Mahadev Jai Dev (Plff.) (Predecessor-in-interest of the defendants)

(2.) The defendants had purchased area known as Kath Mandi in the town of Hissar from Jaiprakash on 29th October, 1946, who in turn had purchased it from Jai Dev, the original owner, in 1932. The Plaintiff's case is that towards the west and contiguous to Kath Mandi he owns land where cotton and ginning press is constructed. There is a railway siding from the Railway Station, Hissar, up to the premises of the plaintiff. The railway track passes through 385 feet long strip belonging to the Railway, 93 feet belonging to the Municipality, 631 feet within the defendant's land and the line continues for 335 feet within the plaintiff's land in which the mill is situated. The total length is 1444 feet joining railway Station with the plaintiff's mill. The plaintiff instituted a suit on 7th June, 1954, seeking declaration that he has a right to use area under the railway track within defendants' territory and to repair the track, and had prayed for a mandatory injunction restraining the defendants from interfering with the plaintiff's right to use and repair the track. The plaintiff had also claimed Rs. 2,000/- by way of damages., but this claim has not been allowed and is no longer a subject-matter of controversy between the parties.

(3.) On 18th May, 1946, Jai Parkash vendee from Jai Dev had entered into an agreement whereby the plaintiff's right to use the track by taking railway wagons or trolley was recognised and in pursuance of this agreement, the plaintiff contends, the defendants in turn must submit to the exercise of that right by the plaintiff. This agreement is Exhibit P.1 on the record. It was after this that Jai Parkash had sold the land to the defendants on 29th October, 1946, and the plaintiff's aforementioned right had been kept in tact in the deed of sale.