- (1.)THESE are two appeals by different sets of plaintiffs in two different suits, one of the plaintiffs being common to both of them, and arise out of a dispute relating to an identical piece of land, and, therefore, I propose to dispose of them by a single judgment.
(2.)THE dispute pertains to a piece of land which has been marked as ABCD in plan ex. 1 and is situate in village Beda which was at the relevant time in the Jagir of the Jagirdar of rhikana Beda. The plaintiffs in suit No. 532 of 1952 which has given rise to appeal No. 45 of 1955 are Moolchand and his son Jawarmal, and one other person Dharamchand. The houses of Moolchand and Dharamchand are admittedly situate to the south and north respectively of the disputed land. The house of moolchand and Jawarmal is marked A in the plan and that of Dharamchand as K therein. The defendants in this suit were in the first instance Chhoga and his 5ons kapura and Jawana, and the Kamdar of rhikana Beda. The case of the plaintiffs in this suit as disposed in the amended plaint, briefly put, was that in between the two houses of Moolchand and Dharamchand there was a common way the exact phrase used in Hindi is over the and a. B. C. D. and that the defendants had raised a construction on it on the 18th september, 1949. The result of this, according to the plaintiffs, was that two ventilators in the first storey and two big windows and a nali (spout to drain out water) n the second storey of plaintiffs Nos. 1 and 2 had seen blocked. With respect to the house of plaintiff No. 3, it was similarly alleged 'that two windows and two ventilators in the' first storey and Two, big windows and a spout in the second storey had been closed. The case of the plaintiffs Nos. 1 and 2 further was that they had been in enjoyment of light and air from the windows and the ventilators aforesaid and so also they had been using the spout for draining out water from their house; for a period of 80 years without interruption while the case of plaintiff No. 3 was that he had been in similar use and enjoyment of the windows and ventilators and the spout in his house (this house having been purchased by the ancestors of this plaintiff in Section 1969 corresponding to 1912 a. D.) for the last 35 years although these also had been in existence for So years prior to the filing of the suit and that the defendants had no right to obstruct the use and enjoyment thereof as thereby the plaintiffs' houses had become useless and almost uninhabitable. It was also alleged both in the original and the amended plaint that the land in dispute constituted a public way and that defendants NOS. 1 and 2 had obtained a patta surreptitiously from defendant Thikana Beda which the latter had no right to give. It was alleged in the original plaint that defendant Chhoga and his companions had collected building material and were bent upon building on the land in dispute and that the Thikana was fully supporting them, and consequently the plaintiffs were compelled to file the present suit. This suit was thus originally filed on the nth September, 1949, with a prayer that the patta which defendants had obtained from Thikana Beda be cancelled and that a perpetual injunction be granted restraining them from raising any kind of construction on the land in dispute. A prayer for ad interim injunction was also made and this was granted by the trial Court. It is common ground however that although Chhoga defendant had originally purchased this land from the Thikana and had applied for a patta of this land from the Thikana it later transpired that the said Chhoga transferred his rights in this land to what is called the Vaishnava public of Beda by an unregistered writing soon after the purchase and these persons put up some construction on this land which is said to be used for some sort of religious purposes. Therefore, defendants anandrarn, Koopa, Narayan and Galba were also impleaded as defendants as representatives of Vaishnava community by an amendment of the plaint and the suit was allowed to be brought against the last-mentioned persons as representatives of the Vaishnava community under the provisions of Order 1, Rule 8 C. P. C. and a prayer for the demolition of this construction, which had been raised on the land after the filing of the suit, was also allowed to be added. These are the allegations on which the first suit was brought by the plaintiffs Moolchand, his son Jawarmal and Dharam Chand who are immediate neighbours of the suit land.
(3.)A second suit with respect to this very land was also filed subsequently by girdhari Lal and three others as representatives of the residents of Mohallas sisodiya, Nawapura and Gogajikigali and Gogaji-ka-bas and this was suit No. 648 of 1952 which has given rise to appeal No. 44 of 1955. It may 'be pointed out that moolchand who was plaintiff in the first suit is also a plaintiff in the second suit. The case of the plaintiffs in this suit was that the land ABCD was being used by the residents of the aforesaid Mohallas for purposes of way from time immemorial and that they had also been making use of this way on occasions of marriages, deaths etc. without interruption and obstruction of any kind. This suit was brought against n defendants and of these Chhoga and his sons were defendants Nos. 1 to 3 and thakur Jagajitsingh of Beda was defendant No. 4 and the remaining defendants from 5 to II were the other residents of Beda who were sued as representatives of vaishnava community under Order 1, Rule 8 of the Code of Civil Procedure. Their case was that the passage over the land ABCD of which they had been in use for several generations had been completely destroyed by the construction which had been raised on this land by the defendants and thereby the residents of the aforesaid Mohallas had suffered substantial damage. It was also mentioned in this plaint that the Thikana had sold the land in dispute for a sum of Rs. 801/- to defendant No. 1 Chhoga bat Chhoga having assigned his rights to the Vaishuavas of Beda, the patta had been made by the Thikana in the name of the Vaishnava public of Beda. It was further stated that the defendants had raised the construction on the land in dispute on the 19th September, 1949, and called it by the name of Anopmandal, and that the same was being looked after by the vaishnava public of the village and, therefore, defendants Nos. 5 to 11 were being impleaded as representatives of that section of the public. It was prayed that a declaration be granted in favour of the plaintiffs that the land ABCD was Rasta and that the plaintiffs had a customary right dnheh gd to use this lurid for purposes of passage. It was further prayed that the patta which had been made by the Thikana in the name of Vaishnava public be cancelled, and that the construction that had been raised on the land be demolished, and a further injunction be granted against the defendants restraining them from erecting any kind of structure on the land in dispute in future.
;