Shishir Kumar, J. - (1.) HEARD learned Counsel for Appellants.
(2.) THIS is a Plaintiffs' second appeal arising out of Suit No. 258 of 2004 filed by Plaintiffs and Appellate Court judgment and decree dated 30.11.2010 in Civil Appeal No. 11 of 2008 (Saulat Ali Khan v. Saiyad Nasir Miyan and another). Facts arising out of suit as stated in the plaint are that Plaintiffs -Appellants are resident of Village Saijni Nankar, District Rampur. Suit is being filed in a representative capacity restraining Defendants from interfering in the path way of Gata No. 140 measuring about 0.152 hectares. It has been alleged that fifty to sixty years, same is being used as a Rasta by Plaintiffs and Defendant without any obstruction and in the map also same has been recorded. In the north, south and west there is a Arazi of Defendant as Gata Nos. 145, 16 and 17 in which there is a road. The Defendant illegally wanted to include this Rasta in his grove to restrain them. A suit was filed as Suit No. 370 of 1962 against the Gram Samaj which was decided against the Defendant on 18th February, 1964 and Defendant was restrained from interfering. An appeal was filed that was dismissed on 29.5.1964, therefore, Defendant is bound by the decree passed in the suit. Further averment was made in the plaint that near the disputed Rasta, a Mazar is situated and Plaintiff No. 1 being Mutwalli, looks after the said Mazar and various persons from the village as well as outside the village comes for that purpose. It was on 21.5.2004 the Defendant forcibly wanted to take possession of this Rasta, hence the suit.
(3.) DEFENDANT filed a written statement denying the allegations made in the plaint with an allegation that no cause of action arises against Defendant being fact that Defendant is the owner of Gata Nos. 14, 16, 18 and 145 and is in possession of the said property. In the same Gata Nos. 142, 16 and 145, there is a grove. In Gata No. 17 there is a private grave -yard which start from Gata No. 17 and goes towards north and then from west to north. In the revenue record, Gata No. 16 some area was shown less. Then an application for rectification was filed and that was registered as Case No. 32 of 1998 -99 which was decided in his favour on 22.8.2001 and that was accordingly corrected and the present Plaintiff was the party to the said proceeding and that was decided after hearing both the parties. An application was filed for cancellation of the said order dated 22.8.2001. The said application was rejected by order dated 11.10.2002 and the area was corrected on the basis of the order. As the Plaintiff No. 1 wanted to take illegal possession of Gata No. 140, therefore, he filed Suit No. 91 of 1997 and after filing written statement, the said suit was dismissed by order dated 22.5.2000. An appeal has also been dismissed by order dated 13.5.2002. An allegation to this effect that Defendant wanted to include the public pathway in his grove, is incorrect.;