- (1.) A. P. Singh, J. A representative suit No. 477 of 1969 was filed by Safiullah and Kamaruddin Irshad Mohammad, Wakeel Ahmad and Shakeel Ahmad are the sons of Irshad Ahmad who have been substituted as plaintiffs after the death of Safiullah. The suit was filed in representative capacity under Order 1, Rule 8 of the Civil Procedure Code with the permission of the Court. Relief sought in the suit was that the defendants, present appellant, Abdul Kareem be restrained by permanent in junction from interfering with plaintiffs' right to lay brick soling (Kharanja) on land shown in the plaint map by letters Al, A2, H and not to cause hindrance in plaintiffs right of passage from the land lying after the land dispute (Jamin tahati majkoor ). Further prayer was for issue of a man datory direction to defendants to demolish the Chabutara shown by letters Al, A2, A6 and Zeena (stairs) shown by letters X, Y, Z existing on the land in dispute and to re store the Rasta (passage) on the land lying after the land in suit (on jamin tahati) in its original condition failing which it should be demolished through the Court.
(2.) THE defendants denied existence of Rasta (passage) from land A, Al, A2 and H and pleaded that this was the Sahan of their house in use from before the time they had purchased the house from one Sri Mohan Kundu. According to defendants Mohan Kundu had laid brick soling over the Sahan land and was running a shop for selling Takauri' over the said land. After purchase of the house of Mohan the defen dants replaced the brick soling with new bricks and thereafter the Chabutara and stairs were constructed on the said Sahan land for the better enjoyment of the house by them. THE showed that the Rasta (pas sage) passed or the south of the Sahan land (land in dispute) on which brick soling of Nagar Palika was already there which was quite different from the brick soling put by Mohan and then by defen dant. Plaintiffs gave a map in the plaint at the back of the last page of the plaint. In the said map houses of defendant (Ancestral and acquired from Mohan) have respec tively been shown by letter 'x' and 'y' whereas the house of Shafiullah is shown towards East of house 'y'. Masjid and Sahan Masjid have been shown towards south of the Nagar Palika road. Stair case is shown by letters 'f' and 'y' towards ex treme north-west of house 'y'. Chawk (Tazia) is shown towards south-west of the Rasta (passage ). The Chabutara and the Rasta which pass therefrom is shown towards south-west corner of house 'y' of defendant, whereas Rasta is shown passing from south-west side touching the edge of the house of defendant passing towards east down below the house of plaintiff Shafiullah (since deceased ). Houses of plaintiff Shafiullah and defendant lie side by side. Both the parties are residents of Mohalla Domanpura in the township of Maunath Bhanjan which fell earlier in dis trict Azamgarh but now it is in district Mau. From the situation of the land in suit the houses of the plaintiff No. 1 since deceased and defendant it becomes very obvious that the dispute in respect of the land in suit is simply between the plaintiff No. 1 (now represented by L. R's.) on the one side and the defendant on the other. However, private dispute between them was converted into a public dispute by taking resort to the provisions of Order 1, Rule 8 of the Civil Procedure Code and the trial Court permitted the plaintiffs to file the suit in a representative capacity.
(3.) THERE has been score of litigation between different set of persons in respect of the Rasta (passage) which is involved in the suit. On one or the other score reliance on maps filed either with the plaint or with the written statement or the one's prepared by Commissioners with their reports in earlier suits has been sought by both the parties to derive help for proving their respective pleadings ; that apart other documents suggesting admission made by plaintiff No. 1 about the land in suit being Sahan land too has been filed. Apart from the voluminous documentary Evidence the parties also produced wit nesses in support of their plea. Whereas plaintiffs produced four witnesses defen dants produced two. Trial Court divided the dispute be tween the parties in respect to the land in dispute in two parts; first part was confined to land marked by letters Al, A2, A5 and the second part was comprised of the land marked by letters A, Al, A2 and H. After discussing evidence which the parties ad duced and giving cogent reasons for ac cepting the one and discarding the other evidence in relation to each of the two parts separately the trial Court decreed plaintiff's suit in respect of the first part whereas the suit was dismissed by it in regard to the second part which trial Court held was Sahan land of the defen dants wherefrom no Rasta (passage) was in existence. One set of appeal only by plaintiffs was filed under Section 96 of the Code of Civil Procedure which was heard and decided by 1st Additional District Judge, Azamgarh. The lower appellate Court allowed the appeal and has decreed the suit in to. It is now the defendants who have approached this Court by means of the above second appeal filed under Sec tion 100 of the Code to question the legality of the appellate judgment and decree passed by the lower appellate Court in plaintiff's favour.;